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Contesting an Election

A contested election takes place when the losing candidate in the election demands a recount of votes. An election is most commonly contested when the margin of votes tallied is close enough to be challenged.

Some states have statutory vote recounts when the difference in vote totals is within a certain percentage. In rare cases, an election is contested when one candidate or party is able to substantiate an allegation of election fraud.

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 one by one or even repeating parts of the election process.

How Does a Candidate Contest an Election?

Contrary to what many believe, election results won't be final on the night of the election. The votes need to be canvased and certified before the candidate is named president. This process may take a while, especially if a substantial number of Americans vote by mail.

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

Laws on Contesting Elections Vary by State

Laws regarding contested elections vary by state, but in most cases, they are settled in civil court or by a legislative body. Differences include:

  • Candidates cannot request a recount in Arizona, Connecticut, Florida, New York, South Carolina, or Tennessee.
  • In Hawaii and Mississippi, contested elections are settled 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, which is usually no more than one percent.
  • In three states (Alaska, South Dakota, and Texas), automatic recounts take place only when the number of votes tallied is exactly even on both sides.

In all but eight states, a recount prompted by a contested election is paid for by the candidate or party that demands it. In some cases, that cost is refunded if the candidate is vindicated by the recount.

Federal Contested Elections Act

The U.S. House of Representatives has its own rules about contested elections. According to the Federal Contested Elections Act of 1969, candidates to the House of Representatives may contest general elections by way of a filing with the Clerk of the House. The law dictates that contested House elections must first go to the federal Committee on House Administration.

A report from that committee then goes to the full House, which has options, including dismissing the challenge, calling for a new election, or declaring one candidate the winner.

When Can Congress Intervene in Presidential Elections?

The presidential candidate who wins the state's popular vote earns that state's electors. Afterwards, Congress will meet in joint session to count and certify the electoral votes as stipulated by the 12th Amendment.

There are also a few scenarios where Congress may intervene to determine who the president will be. These scenarios include:

If the Governor and the State Legislature Send Different Results

Governors certify the results in their respective states and submit them to Congress. However, in some closely contested states, the governor and the state legislature may submit two different election results. In such cases, the Electoral Count Act will likely come into play, whereby Congress will decide which electors are accepted.

If Neither Candidate Secures a Majority Vote

A candidate needs at least 270 of the electoral votes to win an election. If a candidate can't secure these votes, a “contingent election" outlined under the 12th Amendment will be triggered. According to this provision, the House will choose the next president, and the Senate will elect the vice president.

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

States need to settle election-related disputes by the safe harbor deadline. A safe harbor deadline is simply the deadline for states to choose electors. If states don't submit electors by the deadline, Congress may be able to choose the winner when it meets to count electoral votes.

When Does the Supreme Court Get Involved in Contested Elections?

As discussed above, state laws control how elections are administered. Thus, any election dispute must first go to state courts which will apply that state's laws. Congress also stipulated that states should have a process for resolving any election-related disputes and that the decision “shall be conclusive."

What this means is that in most cases, election-related disputes will be decided by the state's highest court applying the state's laws.

But there could be some exceptional circumstances where a federal court would hear an election-related case. A dispute can be brought to federal court if there is an allegation that federal constitutional rights have been violated. For instance, the landmark case of Bush v. Gore (discussed below) went to the Supreme Court because the claimants alleged violation of the equal protection clause.

Contested Elections, Significant Outcomes

Many election challenges take place in low-stakes local elections, such as In Re: the Contested Election of Dennis Hale. But a contested election can have major consequences.

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

But the most significant contested election in recent times was the 2000 presidential election between George W. Bush and Al Gore. An early tally of votes in Florida — which held a crucial 25 electoral votes — showed Bush leading by about 1,700 votes. 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 on the grounds that many ballots were illegally uncounted. But Bush prevailed in the U.S. Supreme Court, by the slimmest 5-4 margin.

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