Posted by Drew Penrose on November 30, 2016
Since the Florida recount was halted after the 2000 election, the need for federal action on presidential recounts has been plain, and the 2016 election has again clarified its need. There exist many problems with current presidential recount policy. First, Congress has set a date for the meeting of electors that is too close to Election Day (the first Monday after the second Wednesday in December; this year, that will be December 19th). The Supreme Court has made clear that states are expected to make their "final determination" as to which electors will vote six days before that (the "safe harbor" day). This schedule made a full hand recount in Florida in 2000 impossible. Additionally, many states have no procedure in place for recounts. In Ohio in 2004, there was not a final initial count until after the safe harbor day had already passed.
Additionally, state policy on recounts varies widely. Few states have clear procedures for ensuring that the initial count occurs quickly enough to allow for a recount. Some states (Mississippi for example) have no laws allowing for recounts at all. Those that do allow for recounts vary in whether they occur automatically below a certain threshold, or must be requested, and the details within those categories vary as well.
Good policy for recounts is important - especially if we retain the current electoral college method that makes recounts so much more likely. The invaluable resource on presidential elections, Every Vote Equal, makes the case for a new federal law governing presidential recounts in Chapter 9 (specifically Section 9.15.7). That law would do the following:
- Move the meeting date for electors to December 30 (or the prior Friday if December 30 falls on a weekend);
- Require that each state prepare and publish a recount plan, including an accelerated initial count (if requested), and a full hand recount by December 14th (if requested);
- Give each presidential candidate on the ballot in a state the right to call for the accelerated initial count and for a recount, provided they are willing to pay, upfront and in full, the costs stated in the state's plans;
- Allow the candidate to pursue other options under state law if they fail to request the accelerated count or recount;
- Clarify that each state must make its "final determination" as to the selection of electors prior to the "safe harbor" date;
- Set the deadline for completion of all counts and recounts at December 14th;
- Give each presidential candidate the right to sue to enforce the provisions above.
Such a law is plainly constitutional under Congress's authority to regulate the counting of votes in presidential elections under Article II and the 12th Amendment. It would go a long way toward ensuring that when recounts are necessary, they can be conducted in a way that is predictable, orderly, and fair.
This would be less of a concern if the election were a nationwide popular election, rather than under the state-by-state winner-take-all electoral college method. There would have been no need for a recount in a year like 2016 when the popular vote margin was over 2,000,000 votes. There would not have even been a need for a recount in 2000, when the difference was about 537,000 votes. The closest election since the 19th century was in 1960, in which Kennedy beat Nixon with about 50.09% of the two-party vote (a difference of about 119,000 votes). In statewide recounts occurring between 2000 and 2015, the average shift in outcome from a recount in an election with more than 2,000,000 voters was only 0.0160% of total votes cast, and the data suggest that that margin shrinks as the number of total votes increases.