With the polls deadlocked just a few days before Election Day, state recount laws once again take on national significance. It is no exaggeration to say that these laws could determine who is elected president in 2012. This issue brief takes a look at some of the most critical provisions of the recount laws in the 10 states identified as most likely to be “tipping point” states that could provide the decisive electoral vote in a close presidential contest (Colorado, Florida, Iowa, New Hampshire, Nevada, North Carolina, Pennsylvania, Ohio, Virginia, and Wisconsin). We also look at factors related to each state that could increase the likelihood of bitter recount contests.
Introduction
With the polls deadlocked just a few days before Election Day, state recount laws once again take on national significance. It is no exaggeration to say that these laws could determine who is elected president in 2012.
This issue brief takes a look at some of the most critical provisions of the recount laws in the ten states identified by Nate Silver of the New York Times on October 26, 2012 as most likely to be “tipping point” states that could provide the decisive electoral vote in a close presidential contest (Colorado, Florida, Iowa, New Hampshire, Nevada, North Carolina, Pennsylvania, Ohio, Virginia, and Wisconsin). We also look at factors related to each state that could increase the likelihood of bitter recount contests.
Some key findings from the analysis of these recount laws:
- In four states — Colorado, Florida, Ohio and Pennsylvania — automatic recounts are triggered when the margin of victory is less than a specified percentage of the total vote. An automatic recount is triggered when the margin of victory is 0.25% of the vote total in Ohio and 0.5% of the vote total in Florida and Pennsylvania. In Colorado, an automatic recount is triggered if the margin is less than or equal to 0.5% of the apparent winner’s vote total. Most of the remaining states, including Iowa, New Hampshire, North Carolina, Virginia and Wisconsin, permit candidate initiated recounts at little or no cost to the candidate if the margin of victory between the leading candidates is similarly small. For some perspective, five states saw the presidential contest decided by less than 0.5% in 2000.
- Start and completion dates of recounts vary dramatically from state to state. In Florida, the recount must be completed within twelve days of the general election if it is to be counted. In other states, such as Ohio, the recount can be completed within days of December 17, when Presidential Electors must meet and vote.
- In most states, the initial recount will be conducted primarily or entirely by machine. Only New Hampshire requires a hand recount of all ballots.
- In three states — Colorado, Pennsylvania and Virginia — substantial numbers of citizens will vote on machines without paper records, meaning that there will be no independent voter-verified paper record to check against the software tally of votes.
- Most states require review of under and overvotes in recounts. These are votes the machine cannot read because it either detects no vote in a contest (undervote) or too many (overvote). Such votes are frequently the subject of dispute during recounts. While the Election Assistance Commission no longer provides data on over and undervotes, we know that Florida saw an unusually high number of overvotes in 2008, particularly in Miami-Dade County. Voting machines can provide overvote and undervote warnings and give voters an opportunity to correct their ballots, so polling places will generally have fewer overvotes and undervotes than absentee votes.
The Role of Provisional and Absentee Ballots in a Recount
Absentee and provisional ballots are frequently the subjects of litigation in tight recounts. That is because, unlike regular ballots cast in a polling place, there are several legal reasons to challenge the counting of such ballots, including the failure of a voter to properly fill out the ballot envelope.
The Brennan Center estimates that in the 2008 and 2010 general elections, hundreds of thousands of these ballots were not counted for technical reasons. When both parties know the results of an election, including the margin of victory, the conflict over whether certain ballots should be disqualified or counted is often greatly increased.
Some important facts about provisional and absentee ballots relevant to potential recounts in these states:
- In several of the potential tipping point states, including Colorado, Florida, North Carolina, and Pennsylvania, tens of thousands of provisional ballots have been cast in the most recent federal elections, and will be again in 2012. In Ohio alone, over 200,000 provisional ballots were cast in 2008, and there is reason to believe substantially more will be cast in 2012. These ballots cannot be counted until after Election Day. In some cases, as in Ohio, they cannot be reviewed for ten days after Election Day.
- In at least one state, Ohio, the rules for whether certain provisional ballots can be counted are still unsettled as of the writing of this report.
- All of the states except for New Hampshire have rejected several thousand absentee ballots in the last two federal elections. In a closely-contested election, the legitimacy of such ballots would almost certainly become a subject of dispute between the parties. The ten states we examine rejected a total of 87,396 absentee ballots in the 2008 election.
- At least six states — Colorado, Florida, Iowa, Ohio, Pennsylvania and Wisconsin — will continue to count military and overseas absentee ballots received for some period of time after Election Day, so long as they were postmarked by November 5 or 6. In these states, 189,729 UOCAVA ballots were submitted in 2008. It is very likely that several thousands of UOCAVA ballots will not be counted until after November 6, 2012.