What Happens if an Election is Close and Contested? An FAQ for Voters and Journalists

Many of Tuesday's races are expected to be close. With partisan tensions running high and trust in elections low, it's crucial that voters and journalists are aware of the procedures that election administrators and the courts have in place to fairly resolve disputes. Understanding these steps can help ensure that results are broadly accepted as legitimate, even when the margins are razor-thin.

Working with U.S.-based allies with decades of experience in monitoring elections across the globe, ERN has compiled an FAQ on what to expect in the event of a close or contested election.

NOTE for New Mexico-based readers: ERN, working jointly with the New Mexico News Fund, authored a companion document to this page specifically in regard to New Mexico election policy. It can be found and downloaded at this link.

Question #1: How do states prepare for close and contested elections?

• Most elections are decided by large margins and generate no controversy at all.
• But close elections happen, and when they do, it is important that voters and candidates can have confidence in the result.  
• Every state has structures to handle close and contested elections. These include procedures to verify the accuracy of results and legal processes that provide candidates or groups of voters the ability to challenge the results in court. It is important for citizens to understand these processes.  
• The existence of election disputes is not itself an indication of any serious problem, particularly when there is acceptance of the legal process by all sides.

Question #2: What safeguards are in place before and during elections to ensure accurate results?

• Before Election Day, voting equipment is tested to ensure that it accurately counts a batch of test ballots. Electronic voting equipment is tested to make sure it accurately records results.  
• In many states, these tests are open to the public and overseen by at least two election staff members or inspectors of different political parties. The public is usually encouraged to attend these tests.
• At the end of Election Day, poll workers must verify that the number of paper ballots cast and/or votes cast on voting machines matches the number of voters who signed in to vote during the course of the day.
• Absentee and vote-by-mail ballots are treated like any other votes, except that instead of signing a poll book, voters must provide some method of identification on the envelope containing the ballot. This may be a signature, drivers license number, the final four digits of the voters SSN, or some other identifier. These identifiers can then be verified against the voter information that the state has on file.
• These layers of verification should give voters confidence in the process. This confidence can be reinforced by the fact that audits and recounts (discussed below) rarely uncover irregularities, and election contests very rarely overturn results. In part for these reasons, even in close elections, the vast majority of losing candidates concede the election without any challenge or contest.

Question #3: What are party election observers and challengers and what role do they play?

• In most states, parties and/or candidates have the right to delegate observers to watch most election processes. This is an important source of transparency to ensure elections are conducted fairly. This also enables political parties to lodge formal complaints if their observers identify concerns about potential electoral infractions or irregularities.
• Parties and/or candidates in some states may also have the right to designate a registered voter to be an official challenger in their precinct. Usually, challengers must submit challenges regarding the legality of individual voters to the poll workers or election officials, and only if they have clear and convincing evidence.

Question #4: What is the role of election audits?

• Most states conduct conventional audits of elections. That means that a fixed percent of ballots are hand counted and the results from that sample compared against the preliminary totals. Some places vary the percentage of ballots based on how close the election was, checking more ballots in closer contests.
• Some states use risk-limiting audits, a sophisticated way of auditing ballots that generates a high degree of confidence that the overall result is correct.
• These processes generally must be completed before the election results are considered official.

Question #5: What is the role of recounts?

• Many states automatically recount all the ballots in a contest if the margin of victory is very close.  
• In many more states, candidates or voters can request a recount if the margin is within a certain range. Sometimes, they can request a recount no matter what the margin is, as long as they are willing to pay for the recount if it does not change the outcome.
• Recount results historically have shown that votes are counted accurately, because the result of the recount is always extremely close to the original count. Reversals in the outcome do occasionally happen, but only in the very closest of races.  For example, in the roughly 6,000 statewide races across the U.S since 2000, there have only been three recounts that overturned the outcome of the race, and those were all elections with a margin of victory less than 0.06%.

Question #6: What are election contests?

• An election contest is a lawsuit filed by a voter or candidate claiming that the election suffered from such defects that it should be overturned.
• All states provide opportunities to contest elections. All but six (ME, MI, NY, RI, WI, and WY) provide for election contests in state law. These laws describe who can challenge results, the grounds for such challenges, where to file the claims, and the procedures to follow. In the six states without these provisions, courts will still hear challenges based on other sources of law or equitable principles.
• Election contests can also be brought in federal court should there be a violation of federal law or the US Constitution. In the past, some election contests, based on the same set of alleged facts and election results, have been filed both in state and federal courts.

Question #7: How are election contests brought?

• In general, any elector can bring an election contest. The person bringing the contest must have standing to bring the lawsuit; for example, a voter from one state will probably not be able to challenge the result in a different state.
• States vary in terms of when election contests may be brought. Typically, state law specifies timelines by which new officeholders must be sworn in. Election contests must therefore be resolved before this deadline.
• Most states describe several grounds on which a contest can be based. The most common grounds include:

• Official misconduct;
• Candidate ineligibility for the office;
• Illegal votes;
• Miscounted votes;
• Legal voters being denied the ability to vote; and
• Bribery or coercion.

• Usually, the contestant will have to show that the irregularities actually changed the outcome. If they allege that 100 illegal votes were cast in a contest won by several thousand votes, then that will not be sufficient.
• Many states require certain specific evidence for particular claims. For example, if illegal votes are alleged, the contestant may need to show exactly how many illegal votes were cast.

Question #8: What principles underlie election contests?

• Those contesting elections have the same rights as any other person or entity bringing a lawsuit in non-election contexts: They may present evidence, file motions, cross-examine witnesses, and appeal to a higher court if they lose.
• If a contestant brings credible and reliable evidence, and if they prove that the election result was wrong, then the court may annul the election and order a new one or may declare a different winner.
• When a court rejects an election contest and confirms the election, the contestant may appeal to a higher court, as far as the highest court in the state or even the U.S. Supreme Court.
• In practice, most claims of fraud do not withstand scrutiny in court and very few election contests result in a decision to change results.

A note on candidate behavior

‍Voters concerned about the topic of contested elections can take reassurance in the fact that this year several hundred candidates from all political parties and states have signed on to statements of principle that include a commitment to acknowledge the legitimacy of the election outcome after the results have been certified and all contestations decided. For more information, see The Candidate Principles for Trusted Elections, led by The Carter Center and the Gerald R. Ford Presidential Foundation.  

Photo by Tingey Injury Law Firm on Unsplash