Tokaji [Ohio State]: Recounts, Contests, and the Electoral College Commentary
Tokaji [Ohio State]: Recounts, Contests, and the Electoral College

Dan Tokaji, Moritz College of Law, Ohio State University:

"There's been continuing attention devoted to the Ohio recount and contest efforts in recent days. The latest developments include the Kerry campaign's reported intent formally to join the recount litigation, and Rev. Jesse Jackson Sr.'s attempt to call attention to alleged irregularities. But the most significant issue, which few people seem to have noticed, is the structural flaw in Ohio's recount and contest laws — which in a close election could degenerate into a genuine constitutional crisis.

Kerry Campaign Joining Recount Litigation

The Washington Post reports here that the Kerry campaign will be joining the Green and Libertarian party efforts to force Delaware County, just north of the Columbus area, to participate in the recount. Delaware County's prosecuting attorney had brought suit to avoid having to go through the recount and, on November 23, a state court judge issued this temporary restraining order preventing the candidates from requiring Delaware County to perform a recount. That case has now been removed to federal court — in other words, the defendants have had the case moved to federal court. And the state judge's TRO expired, by its terms, at 12 noon today, the day that counties are supposed to have completed their official canvass of the votes.

I tend to believe that a recount is not likely to do much good. It won't address the very serious problems that materialized in Ohio's election, such as confusion over provisional voting, long lines at the polls, partisan election administration, and the continuing use of unreliable punch card voting machines that disproportionately harm minority voters. A recount won't change any of these things. And a recount certainly won't change the outcome of the election, as I've explained here.

Still, I don't see any reasonable basis for a court order preventing the Green and Libertarian candidates from seeking a recount in Delaware County or anywhere else in the state. Ohio's recount statute, described here, allows candidates to demand a recount, even if the election results aren't close. If Ohio wants to amend its statute, to limit recounts to cases in which the vote is close, fine, but as long as the current statute is in effect candidates are entitled to a recount — assuming they're willing to put up the required ten bucks per precinct — regardless of whether it will accomplish anything…." [December 1, 2004; Equal Vote has more]

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.