by: Joshua A. Douglas, Associate Professor of Law
The polls are tightening, and the outcome of the hotly contested U.S. Senate race in Kentucky between Democrat Alison Lundergan Grimes and Republican Mitch McConnell is a nail-biter. What happens if we wake up on Wednesday, November 5 and the race is too close to call?
The candidate trailing after all votes are cast will likely seek a recount. Unlike some states, Kentucky law does not provide for an automatic recount in close elections; a candidate must ask for the recount and pay a bond to cover the costs. Any candidate receiving at least 25% of the vote may ask for a recount within ten days of Election Day.
To do so, the candidate seeking a recount will file a petition with the Franklin Circuit Court, along with the required bond. A Circuit Court Judge will then order all voting machines, ballots, boxes, and papers relating to the election to be transferred to the court.
The Judge will fix a day for the recount. On that date, the court will conduct the recount, counting ballots “if their integrity is satisfactorily shown.” To determine voter intent, the court will follow Kentucky regulations defining a “uniform” vote. These regulations explain what counts as a “vote” depending on the kind of ballot a voter uses. The judge conducting the recount then declares the winner of the election. The losing candidate may appeal this finding to the Kentucky Court of Appeals.
There is one significant caveat to seeking a recount in Kentucky: unless the vote totals are extremely close between the candidates, a recount is unlikely to produce much change. This is because the majority of Kentucky voters use either “direct recording electronic” voting machines (DREs) or a combination of paperless DREs with paper ballots on optical scan machines, and neither method is likely to produce significant differences in the vote totals during a recount. As Citizens for Election Integrity, a non-profit organization promoting transparent and accurate elections, notes, the use of these machines “means that, effectively, no recount can be conducted for the majority of votes cast in Kentucky.”
In addition to a recount, a losing candidate can initiate an “election contest” under Kentucky law to protest the certification of the winning candidate. Because this is a statewide election, the losing candidate must file a petition in the Franklin Circuit Court, which randomly assigns a judge to hear the case. Once again, the court takes possession of any voting machines, ballots, or other papers that might impact the resolution of the case. The statute does not specify the grounds on which a candidate may contest an election, but prior cases suggest that the losing candidate must show there was some irregularity or mistake in the ballot casting or counting process that would change the result.
For example, a losing candidate could argue that there was some problem with absentee ballots and that the court should not count certain absentee ballots because of these issues. Indeed, this was the main ground of the contest between Republican Norm Coleman and Democrat Al Franken during the 2008 U.S. Senate dispute in Minnesota. The Minnesota Supreme Court ultimately declared Franken the winner in that contest.
In Kentucky, the court will decide the election contest, declaring who won the election. The losing candidate can appeal the court’s ruling to the Kentucky Court of Appeals and ultimately the Kentucky Supreme Court.
If, for some reason, the court finds that there was fraud, intimidation, bribery, or violence during the election, it must declare the office vacant. In that case, Governor Beshear (a Democrat and Grimes supporter) would fill the vacancy, with the person selected serving until the 2016 election.
In addition to these state law-based grounds, there is always the possibility that a candidate will file a case in federal court alleging a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Further, under Article I, Section 5 of the Constitution, the U.S. Senate is the final judge of the election of its own members, so if the losing candidate wanted to take it that far, he or she could file a challenge in the Senate itself. That is highly unlikely to occur, but it represents the end of the road for legal disputes in this election.
In sum, if we do not know the outcome of the U.S. Senate race in Kentucky on Election Night, the lawyers will swoop in and Kentucky courts will be called upon to determine the winner. Democracy is messy, and court involvement in this contentious race would make it even messier.
For an overview of election contest procedures for various offices in all fifty states, and more details on these processes, see my article Procedural Fairness in Election Contests.