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Monday, November 07, 2016

How Would a Disputed Presidential Election Proceed?

It is the scenario virtually no one wants to face: a presidential election that goes into overtime.  Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed.  Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).  

As I write in a new piece for CNN:

As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.

In addition to the possibility of federal court litigation, each of the 50 states has its own, detailed mechanism for handling a disputed presidential election. Although the procedures vary by state, they all generally suffer from the same destabilizing mechanism: a lack of safeguards to root out the appearance of partisanship.
 
The CNN Op-Ed further notes that although many states send an election contest to their state courts like a regular lawsuit, other states have different procedures: sending a case directly to the state supreme court, using a specially-constituted court, creating a non-judicial tribunal, sending it to the legislature, and in one state even having the governor decide!
 
My article Procedural Fairness in Election Contests includes an Appendix with a 50-state chart of the election contest procedures in every state, describing the procedural mechanisms for election contests for every type of election (president, congress, governor, state legislature, etc.).  It's a good resource, I think, but let's hope we don't need it tomorrow night!

Posted by Josh Douglas on November 7, 2016 at 10:33 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink

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