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44 Harv. J. on Legis. 265 (2007)
Remedying Election Wrongs

handle is hein.journals/hjl44 and id is 269 raw text is: ARTICLE REMEDYING ELECTION WRONGS STEVEN F. HUEFNER* Many matters of U.S. election administration have attracted significant popular political, and scholarly attention in recent years. Largely slighted, however, has been the matter of how the various state election systems re- spond when an election outcome is unsettled or contested. Moreover some recent electoral reforms, such as widespread provisional balloting and in- creased use of no-fault absentee voting, actually may increase the frequency with which contested elections occur This Article explores the complex issues that arise in remedying a failed election, and urges states to refine and clarify their remedial standards and procedures for resolving an election dispute. One unmistakable impact of the incredibly close 2000 presidential race and the dramatic litigation over its outcome is that the American public now pays substantially more attention to how states conduct their elec- tions. Much of this attention has focused-properly--on adopting reforms to avoid the kinds of problems that famously plagued Florida in 2000, whether in matters of ballot design, voting technologies, or recount procedures.' As a result, most states have strengthened their voting processes in a number of important ways to reduce the risks of election difficulties.2 Meanwhile, Congress has enacted the Help America Vote Act (HAVA),3 which en- courages states to update their voting systems, standardize their voting regis- tration requirements, and otherwise improve their election processes.4 Addi- * Associate Professor of Law, Michael E. Moritz College of Law, The Ohio State Uni- versity, and Senior Fellow, Election Law @ Moritz. J.D., Columbia Law School, 1991; A.B., Harvard University, 1986. The author is grateful for the suggestions of Ruth Colker, Terri Enns, Ned Foley, Rick Hasen, and Dan Tokaji, and for the research assistance of Aaron Applebaum, Emmy Ashmus, Andrew Brasse, Damien Kitte, Joshua Moser, Henry Phillips- Gary, Eric White, and Stephen Wolfson. I Summaries and analyses of the 2000 election are voluminous. See generally, e.g., RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITU- TION, AND THE COURTS (2001); THE VOTE: BUSH, GORE, AND THE SUPREME COURT (Cass R. Sunstein & Richard A. Epstein eds., 2001); Symposium, Recounting Election 2000, 13 STAN. L. & POL'y REV. 1 (2002); Gillian Peele, The Legacy of Bush v. Gore, 1 ELECTION L.J. 263 (2002). 2 For a state-by-state list of recent election reforms, see ELECTIONLINE.ORG, ELECTION REFORM: WHAT'S CHANGED, WHAT HASN'T AND WHY 2000-2006, at 39-72 (2006), avail- able at http://www.electionline.org/Portals/I /Publicati ons/2006.annual.report.Final.pdf. 3 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 42 U.S.C.). 4 See, e.g., 42 U.S.C. § 15481 (Supp. 2006) (voting systems requirements); 42 U.S.C. § 15302 (Supp. 2006) (replacement of punch card or lever voting machines); 42 U.S.C. § 15483 (Supp. 2006) (computerized statewide voter registration list requirements and re- quirements for voters who register by mail); 42 U.S.C. § 15482 (Supp. 2006) (provisional voting and voting information requirements).