McConnell v. Grimes: What Happens If We Don’t Know the Winner on November 5?

Alison Lundergan Grimes- Mitch McConnell

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.”

Election Contest

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.

Beyond Headlines: Federal Courts Weigh in on Kentucky's Electioneering Law, But What Does It Realistically Mean for Election Day?

Kentucky Supreme Court Chambers

by: Chris Stewart

Every state in the nation and the District of Columbia impose restrictions on campaigning around polling places. These buffer zones vary in size and degree of strictness, and their goal is to prevent voter intimidation and election fraud. In Kentucky KRS 117.235(3) places a ban on “electioneering communications” within 300 feet of a polling place during the hours that polls are open.

John Russell owns an auto body shop in Northern Kentucky that falls within the proscribed zone. Since Mr. Russell cannot advertise on behalf of candidates at his business on Election Day under this law, he filed a claim that the statute violated his constitutional right to free speech. Mr. Russell stated in his complaint that he not only intends to have political signs on his property on Election Day, but that he further intends to stand outside his business, wave signs, and pass out leaflets to prospective voters.

The U.S. District Court for the Eastern District of Kentucky agreed with Russell’s argument, striking down the law as unconstitutional.  In its opinion, the court referenced two previous cases. The first, from the Supreme Court in 1992, ruled that Tennessee’s 100-foot ban was sufficiently narrow to be constitutional. The second, from the Sixth Circuit Court of Appeals in 2004, ruled that Kentucky’s previous 500-foot ban was overly broad and violated the Constitution. The district court held that KRS 117.235, which fell between these ranges at 300 feet, impinged Russell’s First Amendment right to free speech and was not sufficiently tailored to prevent voter fraud.

The district court offered little in the way of analysis, concluding merely that the court “fails to see how the typical stationary yard sign could ever intimidate a voter or abet election fraud, unless it was blocking the entrance to the polling place.” While this is a conclusion of sorts, it does little to actually address the constitutional question at issue.

The Court of Appeals for the Sixth Circuit issued a partial stay  in this case. Effectively, the court of appeals reinstated the law as it applies to public property.  Most Kentucky polling places are located on public land, and for those located in private entities, the ban is still in effect at the polling places.  For people like Russell, however, who find themselves with businesses or private residences within the 300-foot buffer zone, they may campaign as they choose this November 4, so long as they confine the activities to their property and do not create a disturbance to voters.

The Sixth Circuit’s decision, however, was just a stay, effective for the 2014 election.  The court will eventually hear Kentucky’s appeal on the merits.  The key question will be whether the state’s 300-foot ban is necessary to prevent voter fraud and intimidation.

If the Sixth Circuit agrees with the district court on the merits, Kentucky legislators will doubtless act quickly to enact a new statute banning electioneering at the polls.  If that happens, then a new law will probably need to carve out an exception for private property owners.  Interestingly, the prior 500-foot zone included this very exception, but when the state re-wrote the law after the Sixth Circuit’s 2004 decision invalidating it, the legislature did not include the private property exception.  This omission may have proved fatal for the 2014 litigation.

The real-world impact for Election Day will likely be increased campaigning near polling sites.  Whether this opens the door to voter intimidation or undue pressure on voters – thwarting the aim of the law – remains to be seen.  Expect to see more signs and campaign workers on private property close to busy precincts.  Given that the U.S. Senate race between Mitch McConnell and Alison Lundergan Grimes is both very close and extremely heated – with the margin of victory likely to be tight – we should expect to see vigorous campaigning on behalf of these candidates, and others, near the polls.  This litigation makes that campaigning a tad bit easier.

“Golden Week” Not So Golden This Year

Long line of Ohio voters standing outside of voting place

by: Brittany G. Crouch

Since 2005, Ohio voters have enjoyed particular early voting opportunities, such as evening and Sunday hours, in addition to a unique week in which voters could register and vote on the same day, commonly known as “Golden Week.”  This tradition continued until earlier this year, when a combination of Ohio Senate Bill 238 and a directive from Secretary of State Jon Husted eliminated Golden Week and cut some evening and Sunday hours when voters could cast their ballots.  Under the new law, Ohio provided only 28, instead of 35, early voting days.


In response to these cuts, the NAACP and the ACLU, among others, brought suit against the Secretary of State to have early voting opportunities restored.  On September 4, a federal judge ruled that the cuts to early voting violated the U.S. Constitution and the federal Voting Rights Act, and that the state must restore Golden Week (along with the evening and Sunday hours) in time for the upcoming November election.  On September 24, a unanimous three-judge panel of the U.S. Court of Appeals upheld that ruling, seemingly solidifying Golden Week’s return.

A last-minute decision by the U.S. Supreme Court, however, halted the ruling.  On September 29, in a 5-4 decision, the Supreme Court issued a stay of the Court of Appeals’ ruling, meaning that Golden Week and other early voting hours were not reinstated for this year’s elections.

Why is Golden Week such a pain in the side of the State of Ohio?

Those who opposed retaining Golden Week attribute their stance to the fight against voter fraud and cost.  The State claims that the purpose of a registration deadline is to verify a voter’s identity before voting.  It asserts that when registration occurs simultaneously with voting, there is no time to confirm the identity and residence of the voter.  It argues additionally that allowing these early voting times increases the costs and administrative burdens on state election administration, such as extra staffing that would be necessary to accommodate the early voters.

Why is losing Golden Week putting Rights-Activist groups into a frenzy?

Those in favor of retaining Golden Week and the evening and Sunday voting hours were concerned about voters who relied on these additional early voting opportunities. They believe that this cutback in early voting will affect a disproportionate number of low-income voters who rely on those extra hours because the voters cannot afford to take time off work during regular business hours.  They also claim, through statistical analyses, that the early voting cuts specifically affect African-Americans, because those voters have historically taken advantage of these opportunities in the past decade more than most other voters.   In particular, African-American churches in Ohio use “Souls to the Polls” programs to help bring voters to early voting sites after Sunday church.

The opportunity for early voting in Ohio is settled for this election cycle: voters could vote early only during the reduced 28 days and could not take advantage of Golden Week.  Now the Supreme Court must decide whether or not it will hear this case on the merits—if it does, the stay will remain in effect until a decision is rendered; if it does not, the stay will terminate immediately and the state will have to reinstate extra early voting and Golden Week for the next election cycle. 

What does this mean for the 2014 elections in Ohio, particularly in close races such as the gubernatorial and Secretary of State elections?  Those voters who otherwise would have taken advantage of the expanded voting opportunities – such as many African-American voters – needed to find another time to vote.  And historically those who took advantage of early voting in previous years tended to skew Democratic.  It remains to be seen whether this fact will have a tangible effect on the election outcomes this year, but it is one factor to watch.

On Hold: Frank v. Walker and the Wisconsin Voter ID Law

Wisconsin Supreme Court Interior

by: Claire Fravert

For the past three years, Wisconsin has been wrestling over a law that would require all registered voters to provide a valid photo ID at the polls. Wisconsin’s requirement is strict: for instance, a person may present a student ID from an accredited Wisconsin university or college that contains the date of issuance, but that person must also produce a document showing he or she is currently enrolled. Further, the law does not allow a voter to show a Veteran’s ID card or an ID from one of 16 two-year technical colleges in the state.  If a voter does not have a qualifying ID, the voter may complete a provisional ballot, but the state will count it only if the voter appears at the municipal clerk’s office with an acceptable ID by 4:00 p.m. on the Friday after the election.

On October 9, 2014, the United States Supreme Court blocked the requirement for Wisconsin voters to show a valid ID at the polls for the November 4, 2014 election. The Supreme Court in essence pressed pause on the validity of the law until after the election. Prior to this ruling, a federal trial court had struck down the statute, but the Seventh Circuit Court of Appeals reversed, holding that the law was constitutional. The Seventh Circuit’s decision would have required Wisconsin to implement its law only weeks before the election.  The Supreme Court’s ruling put that decision on hold; after the election, the law will be back in place for the state to implement in 2016, absent any further Supreme Court activity.

The Wisconsin GOP and Governor Scott Walker claim that this law is about the integrity of the electoral process and is designed to reduce the likelihood of in-person voter fraud. Considering that a valid ID is required for everyday activities like driving and buying alcohol, proponents argue it is reasonable to require an ID to vote on Election Day. An American University survey of voters in Indiana, Maryland, and Mississippi found that less than 0.5% of respondents had neither a photo ID nor citizenship documentation.

Critics of the law say it disproportionately burdens poor, older, and minority voters and that in-person voter fraud is extremely rare. The district judge who struck down the law found that roughly 9%, or about 300,000 of all registered voters, lack a qualifying ID.  According to the court, the law would disenfranchise these voters, and even could swing the outcome of a close race.

Separate from the underlying merits of whether Wisconsin’s voter ID requirement is lawful, those who objected to the Seventh Circuit’s decision requiring the state to implement the law for 2014 noted that it would have been extremely difficult to ensure that such a large group of voters could obtain a qualifying ID so soon before the election, causing chaos at the polls.  They further noted that absentee ballots, which the state had already mailed out, did not include the new ID requirement, adding even more confusion and potentially leading to invalid votes.

The upshot is that Wisconsin’s strict voter ID law is not in place for the 2014 election.  Wisconsin has a hotly contested gubernatorial race, so using the ID law, if it had prevented some voters from participating, could have had a significant effect on the outcome.  Indeed, the 2010 race for governor was decided by only 124,638 votes out of over 2 million cast, and this year’s race may be closer.  As it stands, this ruling allows all eligible voters to cast their ballot even if they do not have an ID that would qualify under the new law – at least for the 2014 election.