Basic facts about election contests

In 2004, we persuaded the Georgia Supreme Court to overturn a statewide election in what is believed to be the first — and still only — successful statewide election challenge in U.S. history, Mead v. Sheffield, 601 S.E.2d 99 (Ga. 2004). Thus, as you can imagine, we get a lot of questions and phone calls from candidates and disgruntled voters about how they can contest the results of an election.

Since today is Election Day and one presidential candidate is making claims about the election being rigged and refuses to say whether he will accept the outcome of the election if he loses, we thought we’d share with you the basic facts about election contests.

Generally speaking, there are two types of election contests through which a candidate or voter can contest the results of an election: (1) irregular-ballot cases; and (2) illegal-voter cases. (Yes, individual voters, not just the candidates, can contest election results.)

An irregular ballot case is one in which the ballot given to one or more voters had a fatal flaw, such as omitting the name of a candidate in an election or omitting the entire election altogether. An illegal-voter case is one in which people who are not allowed to vote in a particular election are given ballots and allowed to vote. The type of election contest dictates what one must show in court if one is to successfully contest a particular election.

The injury in an irregular-ballot case occurs when the irregular ballots are distributed to voters. Thus, in an irregular-ballot case, the relevant inquiry is how many irregular ballots were distributed to voters. If the number of irregular ballots distributed to voters is equal to or greater than the margin of victory, a new election is the remedy. For example, if Candidate X lost by 382 votes, but 529 ballots were distributed to voters that omitted Candidate X’s name, then Candidate X can successfully contest the results and a new election will be ordered because basic math tells us that 529 is greater than 382.

The injury in an illegal-voter case occurs when illegal voters cast votes in the particular election being contested. But ballots cannot be traced to individual voters, so these cases are not as simple as rounding up the illegal voters’ ballots and discarding their votes.

An individual voter’s right to privacy as to how they cast their ballot is inviolate. This holds true even for people voting illegally. The privacy of the ballot box is the strongest privacy right recognized by the law, which makes sense in a democracy. Under no circumstances can a court ask anyone — even people voting illegally — how they voted in an election or even if they voted in one particular election out of several on a ballot. Thus, one must engage in some complicated math to determine whether an election contest based on illegal voters will be successful.

In an illegal-voter case, the number of illegal voters one must show to successfully contest an election must be equal to or greater than the difference between the total ballots cast and the number ballots voted in the particular race being contested plus the margin of victory in the race being contested. So, for example, in a statewide election in which 2 million total ballots were cast, but only 1.9 million votes were cast in the election being contested, a candidate losing by 382 votes must show 100,382 illegal voters cast ballots to place the result of the election in doubt and obtain a new election. (This makes sense when one pauses to think about it because it is possible that all the illegal voters did not vote in the election whose outcome is being contested.)

It’s possible to have hybrid cases, where irregular ballots were distributed and illegal voters cast ballots in a particular election. In such cases, both standards come into play.

Of course, one can also contest election results if there were an error in counting the votes if the error would change the result. Those cases often just pose very simple counting problems.