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The presidential election’s potential path to the Supreme Court

November 6, 2012 by Scott Bomboy


The United States Supreme Court has directly decided one presidential election, and a justice indirectly decided a second. So how would the 2012 contest wind up in front of the justices?

It seems like Ohio could be new Florida, in some scenarios.

The Ohio State University Moritz School Of Law and the Brennan Center for Justice at the New York University Of Law have done extensive research of the election and recount process.

And they say there are clear paths for most swing state results to be appealed to the high court, if creative legal minds can navigate the process.

Presidential elections can be especially contentious. The 2000 contest between George W. Bush and Al Gore was decided by the Supreme Court after an electoral dispute in Florida.

The case of Bush v. Gore reinforced the ability of state legislatures to determine their own electors by passing laws and regulating recount standards. That decision is still being debated today.

And in the aftermath of the 1876 election, it was Supreme Court justice Joseph P. Bradley, as the swing vote on a 15-person election commission, who awarded the presidency to Rutherford B. Hayes, even though Samuel Tilden had more popular votes.

If the race between Barack Obama and Mitt Romney is as close as the polls indicate, expect the high potential of an election recount somewhere. And any recount could involve the high court, as we learned in 2000.

There were reports last week that the Democrats and Republicans have already positioned lawyers in the election’s key swing states to start the recount process, and to handle any appeals about provisional and absentee ballots.

What’s unknown is the possible arguments that legal minds could make to advance the appeals process, in a very close election.

The Brennan Center looked at 10 swing states. It says four states, Colorado, Florida, Ohio and Pennsylvania, trigger automatic recounts when the margin of victory is less than a specified percentage of the total vote. The other swing states allow candidates to ask for a recount if the final vote difference is under 0.5 percent.

Given that the final consensus national poll put President Obama ahead of Romney by just 0.7 percent in the popular vote, the possibility of multiple recounts has to be considered.

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So in general, if you see a swing state race where the winner is just ahead by 0.5 percent, expect a recount.

In that case, Ohio becomes interesting for several reasons. The losing candidate can ask for a recount, even if the automatic recount isn’t triggered, by petitioning Ohio’ secretary of state, John Husted, a Republican, for such an action.

The recount in any state and any appeals process needs to be finished by December 11, 2012, the final date a state can submit its slate of electors to Congress.

The Brennan Center says Ohio should have more than 200,000 provisional ballots that can’t be counted until at least a week after the election, and even that process in unsure.

“In at least one state, Ohio, the rules for whether certain provisional ballots can be counted are still unsettled as of the writing of this report,” the Center said on November 2.

Ohio will also count overseas and military ballots after Election Day.

The process is similar in other swing states, but most would have their recounts concluded before Ohio does.

Then, the appeals process for the recounts comes into play.

Joshua A. Douglas, an Assistant Professor of Law at the University of Kentucky College of Law, has that process mapped out in an article that appears on the Ohio State University Moritz School Of Law website.

Douglas explains that challenge to a recount is called an “election contest” and states have differing laws. It was Al Gore’s Florida election contest that made it to the U. S. Supreme Court in 2000.

“Some states give their state Supreme Courts original jurisdiction over a post-election dispute; others treat the case like a normal trial; and still others create a special court or tribunal to hear the case,” Douglas says.

But in a chart provided by Douglas from an upcoming book, it’s apparent not all election contests are the same.

Iowa and Colorado don’t allow an appeal of a presidential elector decision after a panel of state justices decides the outcome, he says.

The other swing states allow appeals through the state legal system and the federal legal system.

Again, Ohio becomes problematic, because its laws send the recount appeals process directly into the federal court system.

“It is hardly unrealistic to think that on Wednesday morning, November 7, Americans may wake up with the news media reporting that Ohio alone remains ‘too close to call’ and that whichever candidate wins Ohio will cross the finish line of 270 or more Electoral College votes,” says Moritz professor Edward B. Foley, who looks at the case of Ohio specifically.

Foley said it’s possible that a candidate could overcome an initial 10,000 vote deficit after all of Ohio’s provisional ballots are counted and certified by November 17. And that’s when the appeals process would start.

Other states would deal with similar problems as legal representatives from both sides pick through the election results.

Last week, Politico said “tens of thousands” of lawyers were already in place nationally to do battle.

“Planeloads of lawyers would descend on the Buckeye State to observe an automatic recount, prompted if the winning candidate wins by less than one-fourth of one percent,” said reporters Lois Romano and Gibson.

The Obama and Romney camps have hired veterans of the 2000 Florida recount to oversee the efforts across the country, Politico says.

If any case does make it to the Supreme Court, the justices will be ready. Five of the nine justices in the current court were involved in the 2000 Bush v. Gore ruling.

The timing of any decision, if a case is accepted, would likely on or before December 11.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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