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Election Litigation: Recounts
A Recount Ordered Because of Evidence That Write-In Votes Were Not Counted
Curtis v. Oliver (James O. Browning, D.N.M. 1:20-cv-748)
A write-in Libertarian Party primary election candidate for New Mexico’s court of appeals was only a few votes short of the number needed to advance to the general election. But there were indications of counting errors related to extensive absentee voting be-cause of the social distancing made necessary by a global infectious pandemic. There was sufficient evidence of an undercount in one county for the district judge to order a recount. After the re-count, the candidate qualified for the general election.
Topics: Election errors; primary election; voting technology; recounts; absentee ballots; early voting; matters for state courts; COVID-19, attorney fees.
2018 Recount Deadlines in Florida
Jim Bonfiglio Campaign v. Detzner (4:18-cv-527) and Bill Nelson for U.S. Senate v. Detzner (4:18-cv-536) (Mark E. Walker, N.D. Fla.)
After a state judge indicated that she would provide a candidate with relief in an action seeking a deadline extension for a recount in one county, but before the state judge actually ruled, the state’s secretary of state removed the action to federal court. After taking evidence from county defendants, the federal judge issued an order declaring that county election officials had discretion to recount the plaintiffs’ race for the state legislature ahead of statewide races, because the plaintiffs’ race could be recounted more quickly. Based on evidence in this case, Judge Walker determined in a second removed case involving a U.S. Senate race that court relief was not required.
Topics: Recounts; removal; intervention; matters for state courts.
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 College 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. The Pennsylvania case ended with a settlement agreement requiring a change in voting technology and a payment of attorney fees.
Topics: Recounts; election errors; voting technology; matters for state courts; laches; intervention; recusal; case assignment; Electoral College; attorney fees.
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 Institute (Edmund A. Sargus, S.D. Ohio 2:04-cv-1139), and Delaware County Prosecuting Attorney v. National Voting Rights Institute (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 commonwealth 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 commonwealth 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.