Subject: [EL] Richie declares victory with recount prediction... Electionlawblog news and commentary 11/10/10
From: Rob Richie
Date: 11/10/2010, 9:39 AM
To: Election Law

The Los Angeles Times story below underscores the fact that contentious recounts in major races, especially in larger population electorates, are the great exception rather than the rule.

Before the election I sent a message to this list suggesting that, all things being equal, there would not be a contentious recount in a major  statewide race this year despite much media fascination with that prospect. I posted my thoughts and supporting evidence on Huffington Post here: http://www.huffingtonpost.com/rob-richie/contested-recounts-unlike_b_777299.html

I've been proven right. The U.S. Senate race in Alaska is proving controversial in the initial counting, not the recounting -- it's quite unlikely  that the race will need a statewide recount involving non write-in ballots. In Minnesota, the apparently full statewide recount in the governor's  race is a colossal waste of energy and money --  and a reflection of the fact that automatic full recounts should not be done with such margins.

In Minnesota defeated candidate Tom Emmer is getting bad advice if he truly thinks he can overcome a margin deficit of 0.42% (and closer to 0.5% if just focused on votes cast for the two leading candidates. Note that the largest shift in a popular vote in any statewide recount of any sort in the last decade was 0.11% -- and that was in the relatively small electorate Vermont, where the errors were largely in tallies done and recorded initially by hand in small communities. To put Emmer's futile quest in perspective, the initial margin in the Franken-Coleman recount was only 0.009%, and the margin shift was 0.018%. That's a margin shift of 440 votes,and Emmer trails by 8,775 votes.

Note that of all 435 U.S. House races, all have winning margins currently outside the largest percentage margin shift that occured in any of the statewide recounts in the last 10 years, meaning all are highly unlikely to change unless newly arrived-counted ballots reduce some of those initial margins.

Bottomline: We should have post-election audits of an appropriate number of ballots to detect potential problems, but absent indications of such problems or other evidence of fraud or election administration breakdown, only need statewide recounts in much closer margins than the Minnesota law of 0.5%. We won't have to do it often.

Now if we could just the votes counted a bit faster... California's statewide AG race is unresolved because so many absentee and provisional ballots are still being opened and counted, even though they all arrived by Election Day.

- Rob Richie, FairVote


On Wed, Nov 10, 2010 at 11:09 AM, Rick Hasen <rick.hasen@lls.edu> wrote:

November 10, 2010

"The Costs of Mandating Disclosure"

John Samples has written this response to Bruce Cain's The Case for Semi-Disclosure at the Cato Unbound forum. Two more to come (including one from me).

Posted by Rick Hasen at 08:06 AM

"Congressmen pay wives from campaign funds"

The Chicago Tribune reports.

Posted by Rick Hasen at 08:02 AM

"Supervisors weigh ending Vernon's control over its housing"

How do you solve a problem like Vernon?

Posted by Rick Hasen at 07:59 AM

"'Earmark' ban proves an early obstacle to GOP unity"

The LA Times offers this report.

Posted by Rick Hasen at 07:54 AM

"Eight congressional races still up in the air; Democrats lead Republicans in only two races. Two key statewide contests also remain undecided."

The LA Times offers this report.

Posted by Rick Hasen at 07:52 AM

"Count continues; Miller sues over spelling"

The Anchorage Daily News offers this report. See also this WaPo report. My earlier coverage of the lawsuit is here.

Posted by Rick Hasen at 07:48 AM

"Dayton, Emmer preparing for the long count"

The Minnesota Star Tribune offers this report.

Posted by Rick Hasen at 07:44 AM

"Mason and Harvard Researchers Encourage Public Participation in Congressional Redistricting With New Website"

See this press release, which begins: "A team of researchers from George Mason University, the Brookings Institution, and Harvard University, in collaboration with Azavea, a Philadelphia-based software design company, is announcing the release of District Builder, a free, open-source web-based software that will enable greater public participation and transparency during the upcoming electoral redistricting process. "

Posted by Rick Hasen at 07:38 AM

November 09, 2010

Joe Miller Files Federal Complaint Over Plan to Deal with Write-In Ballots in U.S. Senate Race

Earlier today the Alaska Division of Elections announced rules for segregating and counting write-in votes that may be credited for Murkowski. Soon thereafter, Joe Miller filed suit in federal court. The suit claims that the rules violate the U.S. Constitution's Elections Clause (giving the state legislature, not state elections officials, the power to choose the rules for counting ballots in Congressional elections, the U.S. Constitution's Equal Protection Clause (by ostensibly failing to adopt uniform standards for judging voter intent under Bush v. Gore), and various state law claims. You can read the complaint and motion for a preliminary injunction. (Thanks to a reader for sending both of these along.)

As I've explain in earlier postings, the issues raised by the Alaska write-in situation raise important questions of both statutory interpretation and constitutional law. Given the analysis I've offered in this article, I was quite surprised to see that Miller's complaint does not include a due process claim, arguing that his rights were violated by a change of the rules in the middle of the election. (That claim is there, but it is not framed as a separate due process claim. That may be the strongest claim he could make.)

Posted by Rick Hasen at 08:48 PM

"Wiggins takes lead in WA Supreme Court race'

Still keeping an eye on this one, but if the numbers in the article are accurate, I expect Mr. Wiggins will stay comfortably out of the automatic recount provision.

Posted by Rick Hasen at 08:28 PM

"Court: No campaign finance limits for small groups"

AP offers this report about this 10th Circuit opinion holding that a group advocating positions on ballot measures but spending very little and receiving few contributions was constitutionally exempt from certain campaign finance disclosure requirements. See also this blog post from CCP, which filed an amicus brief in the case.

One reader points me to this line from the opinion: ""Candidate elections are, by definition, ad hominem affairs."

Posted by Rick Hasen at 08:21 PM

"New GOP senator could vote with Democrats on campaign finance bill"

The Senator Kirk push begins (as I advocated).

Posted by Rick Hasen at 01:04 PM
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
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rick.hasen@lls.edu
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