Contesting an Election

Some states have statutory vote recounts when the difference in vote totals is within a certain percentage. In rare cases, candidates contest an election when they have evidence of election or voter fraud.

Any candidate may investigate the election process. This may involve going through ballots one by one or even parts of the election process.

Types of Elections a Candidate Can Contest

If a candidate believes that poll workers behaved egregiously or that the results don't include ballots cast by all eligible voters, they can contest the election. They can do so in a variety of elections.

Some of the elections a candidate can contest include the following:

• Primary election
• Statewide elections (State elections)
• Special elections
• Local elections

If candidates don't believe the election results are valid, they can contest the election. Some of the reasons they may do so include:

• Malfunctioning voting machines
• Poll workers' failure to check voter ID requirements
• Election officials' failure to include absentee ballots
• Voter suppression
• Failure to include mail ballots or ballots in drop boxes
• Campaign finance fraud
• Violations of federal law or voter ID laws

The candidate contesting the election must submit proof to support their claims. If there is a legitimate issue, election officials or the state may order a recount or a new election.

How Does a Candidate Contest an Election?

Contrary to what many believe, election results aren't final on election night. Election officials must canvas and certify the ballots before they declare the winner. This process can take time, especially with early voting and the number of Americans who vote by mail or submit absentee ballots.

Article II of the Constitution gives states the power to administer and monitor elections. So, a candidate must contest an election's results by following the state's laws and procedures.

The candidate can take more action if the state refuses to recount the votes or conduct an investigation.

Laws on Contesting Elections Vary by State

Laws governing how to contest an election vary by state. In most cases, civil court judges or a legislative body resolve the issue in civil court.

Some of the specific state rules are as follows:

• Candidates cannot request a recount in Arizona, Connecticut, Florida, New York, South Carolina, or Tennessee.
• In Hawaii and Mississippi, officials settle contested elections in court rather than through a vote recount.
• Twenty states and the District of Columbia have provisions for recounts if the difference in vote totals is below a certain threshold, usually no more than 1%.
• In three states (Alaska, South Dakota, and Texas), an automatic recount happens when the number of votes is the same for both candidates.

The candidate contesting the election results in all but eight states must pay for the recount. Sometimes, the election office refunds the money if the recount vindicates the candidate.

Federal Contested Elections Act

The U.S. House of Representatives has specific rules about handling contested federal elections. According to the Federal Contested Elections Act of 1969, candidates to the House of Representatives may contest general elections by filing a protest with the Clerk of the House. But contested House elections must first go to the federal Committee on House Administration.

The Committee on House Administration sends its findings to the full House. The House can dismiss the challenge, call for a new election, or declare one candidate the winner.

Can Congress Intervene in Presidential Elections?

The United States uses the electoral college system. The presidential candidate who wins the state popular vote earns the electoral votes for that state. Per the 12th Amendment, Congress then calls a joint session to count and certify the electoral votes.

There are scenarios in which Congress can intervene to determine the winning presidential candidate. We will discuss these scenarios in more detail below.

Governor and the State Legislature Submit Different Results

Governors certify the results in their respective states and submit them to Congress. But, sometimes, the governor and the state legislature submit different election results. In such cases, the Electoral Count Act will likely come into play, and Congress will decide which electors get accepted.

In these situations, Americans may not have the contest result on election day. It can take days (or months) to finalize the election results. Anyone who remembers the controversy surrounding the 2000 presidential election can testify to that. It took 36 days for the government to declare George W. Bush the election winner over Al Gore.

If Neither Candidate Secures a Majority Vote

A candidate must get at least 270 electoral votes to win a presidential election. If a candidate can't secure these votes, it triggers a "contingent election" outlined under the 12th Amendment. According to this provision, the House will choose the presidential winner, and the Senate will elect the vice president.

Contingent elections are rare. There have only been two contingent elections in U.S. history. The first was in 1801. The two candidates, Thomas Jefferson and Aaron Burr, each had 73 electoral votes. The House of Representatives, under the direction of the 12th Amendment, chose Jefferson to be the next president.

The second contingent election happened in 1825. That year, Andrew Jackson won the popular vote. But, there was no clear-cut winner of the electoral votes. The House of Representatives declared John Quincy Adams the winner. Jackson would win the 1828 election and serve a second term as president.

What If a State Doesn't Certify the Votes by the Safe Harbor Deadline?

States must resolve all election-related disputes by the Safe Harbor Deadline. In the U.S., the states must certify the presidential election results by Dec. 8. Once the states do this, Congress accepts or rejects the results.

The safe harbor deadline is the date by which states must choose electors. If states submit electors after this deadline, Congress can pick the winner.

When Does the Supreme Court Get Involved in Contested Elections?

As discussed above, state laws control how states administer elections. Congress also stipulates that states should have a process for resolving any election-related conflicts and that the decision "shall be conclusive." This means that, in most cases, each state's supreme court will decide election-related disputes.

A federal court will hear an election-related case in certain circumstances. A candidate can take their dispute to federal court if there is an allegation that someone has violated their constitutional rights.

The landmark case of Bush v. Gore went to the Supreme Court because a candidate alleged a violation of the "Equal Protection Clause" in Florida vote counting.

Contested Elections; Significant Outcomes

Many election challenges relate to local elections, such as The Contested Election of Dennis Hale. But even local elections can have a significant impact.

In 2008, incumbent Norm Coleman beat Al Franken, his challenger, in the Minnesota U.S. Senate race. Coleman only beat him by a few hundred votes, which triggered a mandatory second counting of ballots. Over eight months, officials recounted the votes, lawsuits were filed and tried, and several wrongly rejected absentee ballots finally turned the tide in favor of Franken.

The most significant contested election was the 2000 presidential election between George W. Bush and Al Gore. An early tabulation of votes in Florida — which had a crucial 25 electoral votes — showed Bush leading by about 1,700 votes. After the vote count, the margin was slim enough to trigger an automatic recount.

Three weeks later, the Florida secretary of state declared Bush the winner. Gore sued and won in the state supreme court because officials counted many ballots illegally. But Bush prevailed in the U.S. Supreme Court by the slimmest 5-4 margin.

Either the candidate contesting the election or his opponent may investigate any component of how the relevant election was handled. That might mean going through ballots individually or repeating parts of the election process.

You Don't Have to Solve This on Your Own – Get a Lawyer's Help

Contact a civil rights lawyer if you feel someone violated your voting rights or have questions about contesting an election. This can range from the rights of disabled voters to wondering if election officials counted your vote.

Your civil rights attorney can help you understand your options and protect your rights.