The Canvass: December 2020

11/19/2020

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Recounts Provide Reassurance, Rarely Reversal

Recounts have been all over the news—and our inboxes—this November. Georgia conducted a statewide recount as part of a risk limiting audit, and the Peach State is already doing another at President Trump’s request. Another statewide recount may still be on the table in Wisconsin. In 2018, Florida faced three.

Despite their prevalence in recent memory, statewide recounts are rare. A report from FairVote, a nonpartisan reform-minded organization, found that 31 of the 5,778 statewide elections conducted between 2000 and 2019 resulted in a recount. According to the group, “Only three of those 31 recounts overturned the outcome of the race. In all three, the original margin of victory was less than 0.05%.” In other words, reversals aren’t common either, but they can happen—especially when margins are tight.

In which races did those reversals happen?

The 2004 Washington state governor’s race was first called for Republican Dino Rossi. The recount shifted the margin by 390 votes and was ultimately decided for Democrat Christine Gregoire.
The 2006 Vermont state auditor’s race was first called for Republican incumbent Randy Brock. The recount shifted the margin by 239 votes, and the race was decided in favor of Democrat Thomas Salmon.
The 2009 Minnesota U.S. Senate race was first called for Republican incumbent Norm Coleman. The recount and subsequent legal challenges hinged on voter intent (see the November issue of The Canvass), and the final margin shifted by 440 votes to ultimately decide the race for Democrat Al Franken.

In these three races, recounts caught errors and helped right wrongs. In the Vermont state auditor’s race, for example, the recount revealed that in a few locations hand-counted ballots had been systematically attributed to the wrong candidate. This ballot-reading error wouldn’t have been uncovered without the recount’s scrutiny.

The 28 other statewide recounts didn’t change the outcome—but they did increase confidence in democracy and reassure candidates and voters that our elections systems produced an accurate count of legally cast votes.

Recounts can sometimes be a headache, though. Jennifer Morrell—a partner at The Elections Group and consultant with Democracy Fund—recalls having to conduct both a risk-limiting audit and a recount separately for the same race. Most postelection audits, she says, “are designed to escalate to a full recount, if necessary.” So doing both as separate processes may duplicate work in an already stressed postelection moment.

Recounts can also delay the final outcome of an election. In the 2008 U.S. Senate race in Minnesota, the slim victory for Al Franken wasn’t finalized until Jan. 5, 2009, 62 days after the election.

Recounts can cost a lot too—in a 2010 report from The Pew Charitable Trusts researchers found that Minnesota’s 2008 U.S. Senate recount cost approximately $460,000, and Washington’s 2004 gubernatorial recount cost an estimated $1,160,000. As the report notes, the majority of those costs went to labor—after all, recounting votes takes time and people. Counties had to foot the bill for each of these automatic recounts, though both states reimbursed a portion of their costs.

If you’ve been reading The Canvass for awhile, you’re probably tired of hearing us say that every state is different. But it’s true. Recount processes vary by state, some are triggered automatically, while others must be requested, and a handful of states don’t offer recounts at all. Read on for an overview and a compilation of recent enactments on recounts. Or visit our newly updated Election Recounts webpage for comprehensive data on all 50 states.

Who Can Request a Recount?

Forty-one states and the District of Columbia permit a losing candidate, a voter, a group of voters or other concerned parties to petition for a recount. Those that do not are Arizona, Connecticut, Florida, Hawaii, Illinois, Mississippi, New York (this will change on January 1, 2021), South Carolina and Tennessee—though five of these (Arizona, Connecticut, Florida, Hawaii and South Carolina) do have automatic recount provisions.

In the 39 states, a candidate can request a recount. In 12 of these, the results must be within a specified margin for a candidate to make that request: Delaware, Georgia, Missouri, Montana, New Hampshire, North Carolina, North Dakota, South Dakota, Texas, Utah, Vermont and Virginia.

Six states also allow political parties to request recounts, and eight allow voters to do so.

In a few states, the vote totals for the top two candidates must be within a specified margin in order for the losing candidate to be able to request a recount. For example, in Georgia a losing candidate may petition for a recount when results are within 0.5% of total votes cast for the office. This can prevent candidates asking for recounts based on political motives—such as when Jill Stein requested recounts in Wisconsin and Michigan after the 2016 presidential election. She had garnered just above 1% of the votes in each state and had no chance of winning.

In three states—Illinois, Mississippi and Tennessee—a recount may only be conducted by court order. And in Massachusetts and Pennsylvania, recounts must be requested via a petition signed by a specified number of registered voters.

Automatic Recounts

Twenty-one states and the District of Columbia provide for automatic recounts when the margin between the top two candidates falls within certain parameters. That number will increase to 22 in 2021 when a new law takes effect in New York.

In Alaska, South Dakota and Texas, automatic recounts only occur in the case of a tie. In the other 18 states, automatic recounts are triggered by margins ranging from 0.1% to 1% of the total votes cast.

The Bipartisan Policy Center’s Task Force on Elections recommends that all states provide for automatic recounts. The lower the trigger point, the fewer automatic recounts a state will need to run. Because vote-counting machines are highly accurate, the Task Force advises a recount threshold of 0.25% of total ballots cast. Since the only three outcome reversals from recounts occurred when the margin of victory was 0.05%, a margin set too high might waste resources more than anything else.

Recent Legislation

Desk, chair, and microphone in a legislative chamber. A handful of states have made changes to their recount laws in recent years.

In 2019, Hawaii established an automatic recount if the margin of victory is equal to or less than one hundred votes or 0.25% of the votes cast, whichever is greater.

In 2018, Michigan passed two bills related to recounts, both designed to dissuade politically motivated recount requests like presidential candidate Jill Stein’s in 2016. The first doubles the per-precinct deposit fee for recount petitioners from $125 to $250, and the second limits eligibility to request a recount to those who, but for the fraud or mistake, would have had a reasonable chance of winning the election.

In 2017, Nevada passed a law ensuring that all recounts include a count and inspection of all ballots—the previous law allowed an initial recount of 5% of precincts, which would escalate to a full recount if a discrepancy of at least 1% was found.

In 2016, Wisconsin adjusted the guidelines under which a requester might receive a free recount—lowering it from 0.5% to 0.25% of the votes cast.

Recounts are having a moment in the spotlight, so there’s no time like the present to review your state’s laws on our Election Recounts webpage.

In fact, “2021 would be a perfect year,” says Morrell, “for legislators to convene experts to really think about what to do in terms of postelection audits and recounts.”

Resources

NCSL’s Election Recounts webpage

FairVote, A Survey and Analysis of Statewide Election Recounts, 2000-2019 (2020)

National Association of Secretaries of State, State Election Canvassing Timeframes and Recount Thresholds (2020)

Citizens for Election Integrity Minnesota, Recount Principles and Best Practices (2014)

Pew Charitable Trusts, The Cost of Statewide Recounts (2010)

From the Chair

This month we spoke with Vermont Senator Jeanette White (D) who chairs the Senate Committee on Government Operations. She has represented Vermont’s Windham district, which is in the southern part of the state and includes all of Windham County except Londonderry and Wilmington, since 2003.

How did you join the Senate Committee on Government Operations, and why did you want to be chair?

When I first ran and was elected, I had no idea what the committees were. I was sent a list and asked, “which one do you want?” I chose Health and National Resources. But then the current chair of government operations reached out to me and said that the committee really needs people with local government experience. I had been on the select board of my town for nine years, and he was recruiting me.

I love the committee because it deals with the foundations of our democracy—elections, redistricting, state employees—that’s the very structure of government itself. A lot of people might look at this committee and think “what a bore” but it’s not!

Did anything happen in the 2020 primary or general election that may lead to legislation in 2021?

We do election changes almost every biennium. The first week we’re back in session, we’re going to have a debriefing of the whole election—what happened, what issues came up, what do we need to change and what should we do again.

We had some issues with our primaries, including a high spoiled ballot rate—it was almost 6% when it’s normally about 1%. Our primary system is a little bizarre. When you go to vote in a primary, you’re given three ballots—Democratic, Republican and Progressive—and you’re supposed to vote just one and return the other two. So when primary ballots were mailed out this year, some people voted on all three ballots or threw some away. If we do primaries by mail again, we need to figure that out and make the instructions clearer.

There are people who want to do more mail-out ballots. And we should call it “mail-out” because it’s more about mailing out than mailing in—voters have lots of options to return their ballots, not just mail. Mail-out was very costly this year, though, and it was a logistical nightmare for our secretary of state’s office. A single town might have three different ballots because of different house districts. It was like sending out a party invitation to 500 people and saying if you want to bring turkey, respond to this address, but if you want to bring turkey with cranberry sauce, respond to this other one. We had very few errors though!

Can you talk a little about how you work with local election administrators?

To make election changes, we work closely with our secretary of state and the town clerks association. Our town clerks are wonderful people, and they want to preserve the integrity of our elections.

One of the ways we worked together this year was by mailing a postcard to everyone during the primary to help town clerks clean up voter registration lists. They were able to do a lot of cleaning up between the primary and the general election, so then they had much better lists for the general election when ballots were mailed out to registered, active voters.

In terms of municipal elections, we have town meetings. Those are held in person with no Australian ballots [editor’s note: a secret ballot], just floor votes, unless the town decides to use ballots one year in advance. That wasn’t possible with COVID-19, so the legislature made the decision for towns and had them use Australian ballots just for this year.

What are your election administration priorities going into the next year?

I’d love to get us more on the road to public financing of elections.

And our town clerks always have some cleanup ideas for us. One year we sent a letter to all the clerks and advocacy groups and asked them to send us their wish lists for anything they want changed around elections. That year we made a lot of small but important changes—like when town clerks can start counting absentee ballots, how long they can hold ballots, etc. Because of that, we had already made some changes we would’ve had to address due to the pandemic. Maybe we’ll ask for wish lists like that again this year.

What part of Vermont’s elections are you most proud of?

What I’m most proud of is that, for the most part, our election systems are not partisan. There are differences of opinion, but there isn’t a lot of partisanship in that. The people who run our elections—the secretary of state, town clerks, our state election director—honor our elections and take them very seriously.

We also reduce barriers as much as possible—we have online registration, same-day voter registration and automatic voter registration with driver’s licenses. Several years ago, at the request of a couple high school girls, we passed a constitutional amendment that allows 17-year-olds to vote in primaries if they will be 18 at the time of the next general election. This gives them a voice in choosing the candidates, but it took a while. In Vermont, you can only change the constitution once every four years—an amendment must be passed by 20 members of the Senate and a majority in the House. In the next biennium, it has to pass both chambers again, and then it goes on the ballot for voters to approve, which they did.

This interview has been edited for length and clarity.

What does the passage of Measure 2 mean for Alaska’s elections?

Measure 2, which passed with 50.6% of the vote, will establish a new primary system, ranked-choice voting in the general election and additional campaign finance requirements. In short, it’s “a seismic event in Alaskan politics,” according to Alaska Representative Jonathan Kreiss-Tomkins (D).

The measure will implement a first-of-its-kind primary system—a “top-four” primary. Under this new system, all candidates will run in the same primary election, regardless of party affiliation. The four candidates who receive the most votes will then advance to the general election. California and Washington use top-two primary systems, but Alaska will be the first state with a top-four approach.

The initiative’s second change—and the one that’s gotten the most press—is the implementation of a ranked-choice voting system for the general election. Ranked-choice voting gives voters the option to rank their preferred candidates. In Alaska’s case, that means choosing between the top four candidates who advanced from the primary. This change will apply to both state and federal candidates. Alaska will become the second state to use statewide ranked-choice voting, joining Maine, which adopted ranked-choice voting for the first time in 2018.

Finally, Measure 2 establishes a new campaign finance structure that will require additional disclosure from candidate campaigns and independent expenditure groups on contributions over $2,000. These provisions are intended to slow the influx of so-called “dark money” into campaigns in Alaska. The measure will also require political groups that receive more than 50% of their money from out of state to provide a disclaimer on any communications.

Worth Noting

NCSL State Elections 2020

Voters in 44 states chose nearly 6,000 state legislators on Nov. 3, although votes are still being counted. NCSL’s State Elections 2020 coverage has all the information you need, including partisan control, ballot measures and election administration. In NCSL’s State Legislatures Magazine, you can also find articles on how state level partisan control mostly remained status quo, as well as the ballot measures that voters approved. Also check out our resources on postelection processes.

2020 Elections GeoSummit Goes Virtual

The annual Elections GeoSummit will be hosted online like many other meetings this year. Each year, the Elections GeoSummit brings together the nation’s leaders in elections management and geographic information systems (GIS) to share leading-edge findings and craft best practices to enhance election systems. This year’s event will be held virtually, on Thursday, Dec. 10, 1-5 p.m. ET. Visit here for more information and to register.

Monthly Cybersecurity Update

Hand reaching through a computer screen with a key to unlock a file folder The members of Election Infrastructure Government Coordinating Council Executive Committee—which includes the Cybersecurity and Infrastructure Security Agency, U.S. Election Assistance Commission, National Association of Secretaries of State and National Association of State Election Directors—as well as the members of the Election Infrastructure Sector Coordinating Council, released a joint statement following the election.

The statement asserted, “The November 3rd election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result. When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Election Ballot Measures See Mixed Results

Along with measures addressing topics such as drugs and taxes, voters across the nation also weighed in on proposed changes to state election systems. Voters in three states: Alabama, Colorado and Florida added language to their state constitutions restricting voting to citizens only. Many see these measures as mostly symbolic, but in Colorado the change may mean that 17-year-olds who will be 18 by the time of the general election will no longer be able to cast ballots in the state’s primaries.

Other measures had less success. Florida voters refused a citizen initiative that would have enacted a top-two primary and open primary system. Ranked-choice voting failed in Massachusetts. California voters rejected a legislative referral that would have allowed 17-year-olds to vote in primaries, but did pass felon voting rights reform. Finally, Coloradans reaffirmed the legislature’s decision to join the National Popular Vote Interstate Compact.

Guardrails for the Guardians

The Election Reformers Network released a new report focused on chief election officials who are elected on a partisan basis—usually secretaries of state. The report, “Guardrails for the Guardians: Reducing Secretary of State Conflict of Interest and Building More Impartial U.S. Election Administration,” examines the effect of party allegiances on this role, as well as examples of potential conflicts of interest since 2000.

North Carolina Election Official Rejects Her Own Mother’s Ballot

Sara Knotts, the director of the Brunswick County election office in North Carolina, made the difficult decision to block her own mother’s ballot after she passed away before Election Day. North Carolina law requires that voters still be alive on Election Day for their ballots to be accepted. “Hardest thing I’ve done as an elections administrator: present a challenge against the absentee ballot cast by my mom,” Knotts tweeted last week.

Redistricting Is Around the Corner

It’s almost time to redraw districts—and it’s definitely time to plan for it. When it comes to redistricting, the learning curve is steep. Let us help you and your team prepare for this complex, once-a-decade task. Due to the COVID-19 pandemic, we are revising our seminar schedule. We will be holding a virtual seminar on Jan. 6-8, 2021. More information on the seminar and registration can be found on the seminar webpage.

From the NCSL Elections Team

Election Day has passed, but NCSL’s work continues. We are entering a priority setting phase for 2021 and are on the lookout for new ideas and thoughts as head into next year’s legislative sessions.

If you have any questions or information you would like to provide, please reach out.

—Wendy Underhill, Brian Hinkle and Mandy Zoch