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Voters don’t always decide the outcome of elections

By JOSHUA A. DOUGLAS
November 18, 2013

The Virginia General Assembly

The Virginia General Assembly

Voters decide who wins an election, right? Not necessarily.

In fact, we may see partisan operatives determine the winner in the razor-thin race for Virginia’s attorney general. After the initial count, Democrat Mark Herring is ahead of Republican Mark Obenshain by a mere 164 votes out of 2.2 million. If Herring remains on top after a recount and any federal court litigation, then the next step is for the Republican candidate to initiate an “election contest” with the Virginia General Assembly.

This election contest is a procedure in which the losing candidate disputes the certified results. States have varying ways to resolve these controversies — and most use a process that allows partisans to determine the ultimate winner.

There are better solutions, however, than allowing a partisan legislature to decide. We can minimize ideology, actual or perceived, by creating a bipartisan entity that would resolve a post-election battle.

Yet in Virginia an election contest goes to the General Assembly sitting as a joint session, with the speaker of the House of Delegates presiding. Republicans now control a majority of the Virginia General Assembly seats — and have been pushing through a socially conservative agenda.

Some states allow their elected judiciaries to decide a disputed election. Still others have stranger processes. In Texas, for example, the governor decides an election contest for the state’s Presidential Electors. Imagine the presidential election coming down to Texas — the governor would then hold the key to determining the outcome.

When election administrators hold partisan positions, they will inevitably face pressure to render decisions that help their side.

Consider that Ohio’s highest election official, the secretary of state, has been mired in disputes during each of the past few election cycles — regardless of which party held the seat. Both Democrats and Republicans have been blamed because this is a systemic problem.

Even if decisions of election operatives are fair-minded, the public will likely view their actions as partisan. This undermines the integrity of the entire election system.

These problems are amplified when an election is extremely close. One enduring narrative of the 2000 presidential election is that the “conservative” majority of Supreme Court justices decided Bush v. Gore in favor of the Republican candidate, George W. Bush, on ideological grounds. Though not necessarily true as a legal matter, this narrative persists because of the ideological appearance of the process.

By contrast, the result of the 2008 Senate dispute in Minnesota between incumbent Republican Senator Norm Coleman and Democrat Al Franken was far less charged because of the bipartisan nature of the trial court that heard the case. One judge was Democratic-leaning, one was Republican-leaning and one was known to be an independent — all from different parts of the state. The state supreme court’s unanimous decision upholding the lower court’s ruling in favor of Franken reinforced the message that the initial decision was not ideological.

What will happen if the Virginia attorney general’s election goes to the General Assembly? The debate will likely become mired in partisanship — especially if the Republican legislative majority rules in favor of the Republican candidate.

Even if the General Assembly is correct in its ruling, it is unfair to the winning candidate — and the electoral process — to have that win sullied by claims of partisanship.

Minnesota’s outcome was widely accepted precisely because it was bipartisan, with equal representation for each major political party on the three-judge court.

Some states have similar procedures that take the decision away from partisan legislators and judges. In New Hampshire, for example, a five-member Ballot Law Commission resolves election contests. The New Hampshire speaker of the House and president of the Senate each select two members (one from each major party), and the governor selects the last person, who must be qualified in election procedure. Though it may be impossible to remove partisanship entirely, there are ways to at least minimize it by reforming who hears these disputes.

Virtually every news story about the Virginia attorney general race has included a designation of the partisan make-up of the County Board that resolved the initial disputes over counting the ballots. Stories about federal court litigation now usually state the party of the president who appointed the judge in charge of making the decision. If this election goes to the General Assembly, reports will inevitably include a discussion of the legislature’s partisan make-up. This is unfortunate.

We should decide these post-election controversies without actual or perceived ideology. Our nation is ever more closely divided. And elections reflect this, as they increasingly go into overtime. We must reconsider the procedures we use to resolve these disputes, to remove partisan decision-makers from the process.

Joshua A. Douglas is an assistant professor, specializing in election law, at the University of Kentucky College of Law.

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