Legal Processes for Contesting the Results of a Presidential Election

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Legal Processes for Contesting the Results of a

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Legal Processes for Contesting the Results of a Presidential Election

Summary

Questions occasionally surface regarding potential voting fraud or election irregularities in

presidential elections. (See, for example, Sean Sullivan and Philip Rucker, “Trump’s Claim of

‘Rigged’ Vote Stirs Fears of Trouble,” Washington Post, October 18, 2016, p. A1; Edward-Isaac

Dovere, “Fears Mount on Trump’s ‘Rigged Election’ Rhetoric,” Politico, October 16, 2016;

Daniel Kurtzleben, “5 Reasons (And Then Some) Not to Worry About A ‘Rigged’ Election,”

NPR, October 18, 2016). If legitimate and verifiable allegations of voting fraud, or indications of

misconduct by election officials on election day are presented, what legal recourses are available

to complainants to litigate and potentially to remedy such wrongs and to contest the result of a

presidential election?

Presidential elections are conducted in each state and the District of Columbia to select “electors”

from that state who will meet and formally vote for a candidate for President on the first Monday

following the second Wednesday in December. Under the U.S. Constitution, these elections for

presidential electors are administered and regulated in the first instance by the states, and state

laws have established the procedures for ballot security, tallying the votes, challenging the vote

count, recounts, and election contests within their respective jurisdictions. A candidate or voters

challenging the results of a presidential election in a particular state would thus initially seek to

contest the results of that election in the state according to the procedures and deadlines set out in

the laws of that specific state.

After the results of an election for presidential electors are officially certified by the state, the

selected presidential electors meet and cast their votes for President in December. The certificates

indicating the votes of the electors are then sent to the federal government, and those certificates

are opened and the electoral votes formally announced during the first week in January in a joint

session of the U.S. Congress, under the directions of the Twelfth Amendment of the Constitution.

The counting and the official tabulation of the electoral votes from the states within Congress

provides a further opportunity to challenge and protest electoral votes from a state. Under federal

law and congressional precedents, an objection may be made to the counting of electoral votes

from a state by a formal objection made in writing by at least one Member of the House of

Representatives and one Senator. Once made, each house of Congress separately debates and

votes on the objection. If both houses of Congress sustain the objection, the electoral votes

objected to are not counted; but if only one house, or neither the House nor the Senate, votes to

sustain the objection, then the electoral votes from that state are counted.

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Legal Processes for Contesting the Results of a Presidential Election

Contents

Contests in the State ........................................................................................................................ 1

Examples of State Procedures ......................................................................................................... 3

Challenges to Electoral Count in Congress ..................................................................................... 7

Contacts

Author Contact Information ............................................................................................................ 8

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lthough it has national impact, the presidential election is, in essence, 50 state and District

of Columbia elections for presidential electors held on the same day throughout the

country.1 Therefore—and consistent with the states’ traditional authority over the

administration of elections within their jurisdictions—it is an individual state that has the initial

responsibility for resolving a challenge, recount, or contest to the results of a presidential election

within that jurisdiction. The state rules and procedures for filing election contests generally, and

with respect to the selection of presidential electors specifically, may vary greatly from state to

state. Candidates or electors who seek to challenge election results must follow the particular

rules and meet the specific state deadlines for such actions within that jurisdiction.

It should be noted that the Electoral Count Act of 1887, as amended2—which governs procedures

for Congress to count the electoral votes and certify the presidential winner under Congress’

Twelfth Amendment responsibility—contemplates that contests and challenges to the vote for

presidential electors are to be initially handled in the states. The electoral count law provides that

if a contest or challenge in a state to the election or appointment of presidential electors is

resolved in that state by an established procedure before the sixth day prior to the meeting of the

electors, that such determination shall be “conclusive” and shall “govern” when Congress counts

the electoral votes as directed in the Twelfth Amendment.3 The Supreme Court has referred to this

as the “safe harbor” provision.4 This year the presidential electors are scheduled to meet on

December 19, 2016.5 Six days prior is December 13, 2016 which, therefore, would be the last day

for a state to make a final determination in order for it to be “conclusive” when Congress counts

the electoral votes.

Contests in the State

Under the U.S. Constitution, the states are delegated the initial and principal authority for the

administration of elections within their jurisdictions, including elections to federal office.6 Such

election administration in the states would generally include provisions for recounts, challenges,

or contests to the results of such elections in the state that may be filed by the appropriate parties

within a specific time frame and procedure established by state law.7

State elections for presidential electors have, since 1845, been required to be held on the same day in November every

presidential election year. 5 Stat. 721, ch. 1 (1845)(now 3 U.S.C. § 1). Note U.S. CONST., art. II, § 1, cl. 4.

Electoral Count Act of 1887, 24 Stat. 373, ch. 90 (1887); see P.L. 771, 62 Stat. 671 (1948)(now 3 U.S.C. §§ 3-21).

3 U.S.C. § 5.

Bush v. Gore, 531 U.S. 98, 110-11 (2000).

3 U.S.C. § 7. The electors are to meet on the first Monday after the second Wednesday in December.

U.S. CONST., art. 2, §1, cl. 2, McPherson v. Blacker, 146 U.S. 1, 35 (1892), Bush v. Gore, 531 U.S. 98, 105 (2000) (as

to states’ authority over the “Manner” of appointing electors); and U.S. CONST., art. 1, § 4, cl. 1, Storer v. Brown, 415

U.S. 724 (1974), Jenness v. Fortson, 403 U.S. 431 (1971); see United States v. Gradwell, 243 U.S. 476, 482, 484-85

(1917), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-35 (1995) (as to states’ authority over congressional

federal elections). Congress has an express reserved and superseding authority with respect to congressional elections

(U.S. CONST., art. 1, § 4, cl. 1), and a recognized inherent authority to assure the integrity of presidential elections.

For a general overview, see Marie Garber and Abe Frank, Contested Elections and Recounts, A Summary of State

Procedures for Resolving Disputed Federal Elections, National Clearinghouse on Election Administration, Federal

Election Commission (1990); William and Mary School of Law, ELECTION LAW MANUAL Ch. 9, “Election Contests.”

(http://www.electionlawissues.org/Resources/Election-Law-Manual.aspx); and Steven F. Huefner, Remedying Election

Wrongs, 44 HARV. J. ON LEGIS. 265 (2007).

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Recounts of election results generally involve a re-canvassing or re-tabulation of votes and/or

vote tallies that were given and recorded in the state or in particular election districts.8 Such

recounts may be automatic under state statute for particularly close election results, or may follow

a request or petition for a recount made by a candidate under circumstances that allow such

recounts.

An election contest, however, usually addresses allegations of fraud in voting, or mistake or

irregularity in election administration, that has resulted in the wrong candidate having been found

to have received the most votes in the election, or which has made the ascertainment of the

winner “reasonably uncertain.” Courts have been historically cautious in interfering with and

overturning the results of a popular election on the basis of allegations of fraud or election

irregularities.9

As is the case in general with civil law suits under American jurisprudence, the burden of proof is

upon the challenger, that is, the moving party, not only to prove all of the allegations and charges

with specific, credible evidence,10 but also—in the case of an election contest—to show that any

fraud or irregularity proven was to such an extent that it would actually have changed the result of

the election or rendered the actual outcome reasonably uncertain.11 This would mean, for

example, that even if a candidate could show that there were, in fact, several hundred fraudulent

votes in a particular election, if that candidate lost in the state by several thousand votes, the

results of that election would not be affected by such fraud or errors. However, even where the

number of illegal, fraudulent, or mistaken votes is shown to exceed the margin of victory, such

showing may not, in most states, necessarily invalidate or overturn the results of an election. This

is because it may be difficult for a challenger to show for whom those votes were given, or would

have been given. In many jurisdictions it must be shown by “direct evidence” (or by some

acceptable method of “proportional deduction”) 12 that any such illegal, fraudulent, or mistaken

votes were for the “winning” candidate in such numbers that he or she would not have won the

election.

It should be noted that there may be several different types and categories of potential voter or

election “fraud” or irregularities that may occur in any particular election. With respect to inperson voting fraud, including voter “impersonation” or multiple voting by one person, such

fraud to any extent that would affect the results of a statewide or nationwide election would

appear to be unprecedented in recent American history, as several independent studies have

See generally, Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS., 265, 269-70 (2007); and

Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAM L. REV. 1711, app. B at 18171836 (2005).

Note, Developments in the Law: Voting and Democracy, 119 HARV. L. REV. 1127, 1155–65, 1188–1200 (2006); See,

e.g., In re Wallingford-Swarthmore School Dist. Election, 66 Pa. D. & C.2d 616 (1974).

29 AM.JUR.2D, Evidence, §174: “Typically, the plaintiff has the burden of pleading and proving every essential fact

and element of his or her cause of action.”

“Although their language varies by state, contest statutes typically require the contestant to plead that the complained

of fraud or irregularities 1) changed the election’s outcome or 2) rendered the outcome uncertain. Known respectively

as ‘but for’ and the ‘uncertain outcome’ tests, courts measure the contestant’s proof against these standards to

determine if the contestant prevails.” ELECTION LAW MANUAL, supra at p. 9-7. (Footnotes omitted). “[T]o obtain

judicial relief a contestant is ordinarily required to prove sufficient illegal votes to call the outcome into question

[citation omitted]. When that predicate is not met, courts effectively have no authority to alter the election results, even

if some illegal voting can be proven.” Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS., 265,

280, n. 85 (2007).

“[M]any courts have been reluctant to adopt the elimination of uncertainty approach, and instead have turned to the

direct evidence or proportional deduction method.” Developments in the Law: Voting and Democracy, 119 HARV. L.

REV. 1127, 1158 (2006).

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shown.13 An academic analysis of contested federal elections concluded, for example, that

“[D]emonstrated cases of actual fraud are relatively uncommon, given the frequency with which

Americans vote and the number of races involved.”14 One reported study showed that over the

last few decades, out of more than one billion total votes cast in the United States there were

credible allegations of 31 fraudulent votes given in person on election day (and these allegations

were not necessarily proven).15 The Government Accountability Office (GAO), in a report to

Congress, pointed out both the difficulty in quantifying and the scarcity of examples of voting

fraud in the states. In that report GAO quoted the Department of Justice as noting that “...

publicly available and related court records indicated that there were no apparent cases of inperson voter impersonation charged by DOJ ’s Criminal Division or by U.S. Attorney ’s offices

anywhere in the United States, from 2004 through July 3, 2014.”16

Examples of State Procedures

As noted, the procedures, deadlines, and rules for election contests (as well as for petitions or

“triggers” for recounts in the states) may vary greatly from state to state. A candidate and/or

electors who seek to challenge the results of an election of presidential electors within a state

must, therefore, follow those state statutes, procedures, and deadlines for filing such challenges

and contests. Several state procedures are discussed below as examples of those rules:

Colorado law provides that the Colorado “supreme court has original jurisdiction for the

adjudication of contests concerning presidential electors.... ”17 The Colorado Rules of Civil

Procedure state that any “qualified elector” seeking to contest the election of presidential electors

must, within 35 days after the canvass of the secretary of state, file in the office of the secretary of

state a statement of an intent to contest.18 Within 35 days after the filing of the statement of intent

to contest, the person contesting the election must file a complaint in the office of the clerk of the

supreme court.19 The court will “hear and determine the [case] in a summary manner” without a

jury.20

In Florida, an election may be contested by the filing of a complaint in the circuit court by an

unsuccessful candidate, or by an elector or taxpayer, within 10 days after the date that the election

See, e.g., Justin Levitt, Brennan Center for Justice at New York University School of Law, The Truth About Voter

Fraud (2007); News21, a project of the Carnegie Corporation and the John S. and James L. Knight Foundation, at the

Walter Cronkite School of Journalism and Mass Communication, Arizona State University. Exhaustive Database of

Voter Fraud Cases Turns Up Scant Evidence That It Happens, August 12, 2012, http://votingrights.news21.com/article/

election-fraud-explainer/index.html.

Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS., 265, 272 (2007).

See Washington Post, A Comprehensive Investigation of Voter Impersonation Finds 31 Credible Incidents Out of

One Billion Ballots Cast, August 6, 2014, https://www.washingtonpost.com/news/wonk/wp/2014/08/06/acomprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast.

U.S. Government Accountability Office, ELECTIONS - Issues Related to State Voter Identification Laws, at 70

(GAO -14-634, September 2014). In overturning North Carolina’s voter identification requirement as overly

burdensome on minority voters, the U.S. Court of Appeals for the Fourth Circuit found that “the State has failed to

identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina.”

North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204, 235 (4th Cir. 2016).

COLO. REV. STAT. ANN. § 1-11-204.

COLO. R. CIV. P, 100(a).

COLO. R. CIV. P, 100(b).

Id.

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has been certified.21 The complaint must allege one of the four statutory grounds for overturning

the results of the election (misconduct, fraud, or corruption of an election official; ineligibility of

the successful candidate; receipt of a number of illegal votes or rejection of a number of lawful

votes “sufficient to change or place in doubt the result of the election”; or proof of bribery of

voters or election officials).22 Previous case law in Florida has shown that the filing party has the

burden of proving the allegations made, and of showing that the proven fraud or illegality was in

such numbers that “but for” those irregularities the result of the election would have been

different,23 or that the true result of the election cannot be ascertained with reasonable certainty.24

Nevada provides that a candidate or any registered voter may contest an election, including

election to the office of presidential elector, by filing “with the clerk of the district court” a

written “statement of contest” which includes general identifying information as to the contestant,

the defendant, the office concerned, as well as an explanation of the “particular grounds of

contest.”25 The statement of contest must be filed within five days after a recount is completed or,

if there is no recount, no later than 14 days after the election.26 An election may be contested on

following grounds:

(a) That the election board or any member thereof was guilty of malfeasance.

(b) That a person who has been declared elected to an office was not at the time of

election eligible to that office.

defendant, will reduce the number of the defendant’s legal votes below the number

necessary to elect the defendant.

(d) That the election board, in conducting the election or in canvassing the returns, made

errors sufficient to change the result of the election as to any person who has been

declared elected.

(e) That the defendant has given, or offered to give, to any person a bribe for the purpose

of procuring his or her election.

(f) That there was a possible malfunction of any voting or counting device.27

The grounds of illegal votes given, or errors in canvassing returns must, therefore, be shown to be

of such an extent that illegalities or errors would change the result of the election.

New Hampshire law does not appear to provide a specific statutory scheme for election contests

relating to federal elections, but rather provides for a process for a recount and an appeal and

hearing on such recount results. The New Hampshire statutes provide that “any candidate for

whom a vote was cast” may apply for a recount, which application is to be made to the secretary

of state no later than the Friday following the election.28 During the recount process, the

candidates and their counsels and representatives may “protest” the counting or failure to count

FLA. STAT. ANN. § 102.168(1) and (2).

FLA. STAT. ANN. § 102.168(3)(a)-(d).

Smith v. Tynes, 412 So.2d 925 (Fla. 1982).

Bolden v. Potter, 452 So.2d 564 (Fla. 1984).

NEV. REV. STAT. ANN. §293.407.

NEV. REV. STAT. ANN. §293.413.

NEV. REV. STAT. ANN. §293.410.

N.H. REV. STAT. ANN. § 660:1.

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any ballot, and the secretary of state is to rule on such protest.29 An appeal of the recount results

may be made within three days of the declaration of the results of the recount to the state ballot

law commission, which may determine which candidate received the greatest number of votes.30

That determination may then be appealed to the state supreme court within five days of the

board’s decision.31 Although there is no specific statutory grounds or cause of action for an

election contest to be brought in the case of an election for federal office, the New Hampshire

statutes do recognize that nothing in their statutory scheme would necessarily prevent a common

law cause of action and recourse “to the superior court on other questions, within the jurisdiction

of such court, relating to the legality or regularity of general elections or the results thereof.”32

North Carolina provides that election contests are, as a general matter, to be filed with the

county board of elections.33 However, because the county boards may rule that they cannot

resolve the issue if an election is in more than one county,34 and because a petition may be taken

up directly by the State Board of Elections,35 it would appear reasonable to file a petition directly

to the State Board of Elections (or at least concurrently with a filing to the county board) with

respect to irregularities or misconduct in the votes for presidential electors. The protest must state

whether it concerns “the manner in which votes were counted and results tabulated,” or whether it

relates to some “other irregularity,” and what remedy the protester is seeking.36 If the protest

involves the manner in which votes were counted and results tabulated, then it must be filed

before the beginning of the county board of election’s canvass meeting (or if good cause for delay

is shown, it may be filed up to 5:00 P.M. on the second business day after the county board of

elections has completed its canvass and declared the results37). If the protest involves some other

irregularity, then it must be filed before 5:00 P.M. on the second business day after the county

board of elections has completed its canvass and declared the results.38 The State Board of

Elections ̶ when a known group of voters cast votes that were beyond retrieval or where a known

group of voters were given an incorrect ballot style–may authorize a county board to allow those

voters to recast their votes during a period of two weeks after the canvass by the State Board of

Elections.39 The State Board of Elections may order a new election if

(1) Ineligible voters sufficient in number to change the outcome of the election were

allowed to vote in the election, and it is not possible from examination of the official

ballots to determine how those ineligible voters voted and to correct the totals.

(2) Eligible voters sufficient in number to change the outcome of the election were

improperly prevented from voting.

(3) Other irregularities affected a sufficient number of votes to change the outcome of the

election.

N.H. REV. STAT. ANN. § 660:5.

N.H. REV. STAT. ANN. § 665:8.

N.H. REV. STAT. ANN. § 665:16.

N.H. REV. STAT. ANN. § 665:8.

N.C. GEN. STAT. ANN. §163-182.9 (“Filing an election protest”).

N.C. GEN. STAT. ANN. §163-182.10(d)(2)d.

N.C. GEN. STAT. ANN. § 163-182.12.

N.C. GEN. STAT. ANN. §163-182.9(b)(2)(3).

N.C. GEN. STAT. ANN. §163-182.9(b)(4)a. and b.

N.C. GEN. STAT. ANN. §163-182.9(b)(4)c.

N.C. GEN. STAT. ANN. §163-182.12.

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(4) Irregularities or improprieties occurred to such an extent that they taint the results of

the entire election and cast doubt on its fairness.40

After a decision by the State Board of Elections, an aggrieved party may appeal the decision to

the Superior Court of Wake County within 10 days of the date of service of the final decision.41

Ohio appears to be an exception as far as election contests with respect to elections for federal

office are concerned, including elections of presidential electors. The contested election

procedure set out in the Ohio Code expressly states that it does not apply to an election for

presidential elector, or for other federal office. Rather, the Ohio law provides that any such

contests for presidential electors, as well as for other federal offices, “shall be conducted in

accordance with the applicable provisions of federal law.”42

In Pennsylvania, an election contest dealing with the selection of electors for President and Vice

President of the United States43 must be filed within 20 days after the election,44 regardless of

whether a recount of that election is proceeding or not.45 The contest is initiated by the filing of a

petition in the appropriate court of jurisdiction in Pennsylvania by affidavit of at least five

petitioners who are registered electors in Pennsylvania and who voted in the election being

contested.46 The complaint must “concisely set forth the cause of the complaint, showing wherein

it is claimed that the primary or election is illegal.”47 An “illegal” election refers to allegations of

fraud or wrongdoing in the casting, computation, and returns of votes,48 and must aver facts

which, if proven, would definitely change the results of the election.49

In Virginia a contest to the election of electors for President and Vice President may be filed by a

written complaint of one or more of the unsuccessful candidates,50 and contest proceedings are to

be held in the Circuit Court of the City of Richmond before a special judicial panel.51 Such notice

to contest must be filed no later than 5:00 p.m. on the second calendar day after the State Board

certifies the result of the election, and a copy of the complaint is to be served on each contestee

within five days after the Board has certified the election.52 Grounds for the complaint are either

objections to the eligibility of the contestee, or objections to the conduct or the results of the

election “accompanied by specific allegations which, if proven true, would have a probable

impact on the outcome of the election.... ”53 The contest is to be heard and determined without a

N.C. GEN. STAT. ANN. §163-182.13(a).

N.C. GEN. STAT. ANN. §163-182.14(b).

OHIO REV. CODE ANN. § 3515.08.

25 PA. STAT. AND CONS. STAT. ANN. § 3291.

25 PA. STAT. AND CONS. STAT. ANN. § 3456.

In re Petition to Contest General Election for Dist. Justice in Judicial Dist. 36-3-03 Nunc Pro Tunc, 670 A.2d 629

(Pa. 1996); In re Opening of Ballot Box of Greenwood Township, 25 A.2d 330 (Pa. 1942)

25 PA. STAT. AND CONS. STAT. ANN. §§ 3457, 3458.

25 PA. STAT. AND CONS. STAT. ANN. § 3456.

In re Petition to Contest Primary Election of May 19, 1998, 721 A.2d 1156 (Pa. Commw. Ct. 1998).

In re Philadelphia Democratic Mayoralty Primary Election Contest, 11 Pa. D. & C.3d 381 (1979).

VA. CODE ANN. § 24.2-807.

VA. CODE ANN. § 24.2-805. The special judicial panel is composed of the chief judge of the Circuit Court of

Richmond and two circuit court judges of circuits not contiguous to the City of Richmond appointed by the Chief

Justice of the Virginia Supreme Court.

VA. CODE ANN. § 24.2-805.

VA. CODE ANN. § 24.2-807.

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jury,54 shall be held “promptly,” and shall be completed at least six days before the time fixed for

the meeting of the electors.55

Challenges to Electoral Count in Congress

The Twelfth Amendment to the U.S. Constitution provides that Congress shall meet in joint

session to count and certify the electoral votes for President. Implicit in the express authority of

Congress to count the electoral votes and to formally announce the winner of the presidential

election, has been the authority (and practical necessity) to determine which electoral votes to

count.

When Congress meets to count the electoral votes in January following the meeting of the

presidential electors in December, objections may be made to the counting of electoral votes from

a particular state. Federal law, known as the Electoral Count Act of 1887, sets forth a detailed

procedure for making and acting on objections to the counting of one or more of the electoral

votes.56 When the certificate or equivalent paper from each state or the District of Columbia is

read, “the President of the Senate shall call for objections, if any.” Any such objection must be

presented in writing and must be signed by at least one Senator and one Representative.

Furthermore, the objection “shall state clearly and concisely, and without argument, the ground

thereof,” and no debate on the objection is to be made in the joint session itself. When a properly

made objection is received, the joint session is temporarily dissolved and each house is to meet to

consider the objection separately. For an objection to be sustained, it must be agreed to by each

house of Congress meeting separately.57

By way of example, due to alleged voting irregularities in the state, an objection was made to the

Ohio electoral votes during the January 2005 joint session.58 In accordance with federal law, the

chambers withdrew from the joint session to consider the objection, but neither the House nor

Senate agreed to accept the objection. When the House and Senate resumed in joint session,

“because the two Houses have not sustained the objection,” Ohio’s electoral votes were counted

as cast.59

Similar to an election contest in the states, it appears that the burden of proof within Congress to

overcome the presumption of regularity of an officially certified election may be significant. As

noted earlier, the Electoral Count Act indicates the congressional determination that the states are

to be the initial arbiter of election contests for presidential electors within their respective

jurisdictions. Thus the provision of the Electoral Count Act known as the “safe harbor” provision

expressly provides for final and “conclusive” determinations of the election of presidential

electors in the states when timely contested under established state procedures.60

VA. CODE ANN. § 24.2-810.

VA. CODE ANN. § 24.2-805.

24 Stat. 373, ch. 90 (1887); see P.L. 771, 62 Stat. 671 (1948)(now 3 U.S.C. § 15).

3 U.S.C. § 15. For an objection to be sustained, it must be approved by both houses by a majority vote in each house

of Congress. For general information on the electoral vote count in Congress, see CRS Report RL32717, Counting

Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress.

151 CONG. REC. 198-199 (2005).

151 CONG. REC. 242 (2005).

3 U.S.C. § 5. “The Electoral Count Act was a clear and unmistakable message to the States that the Congress did not

want to assert original jurisdiction in election disputes involving Presidential Electors although they reserved the right

to make an ultimate judgment.” Marie Garber and Abe Frank, Contested Elections and Recounts 1, A Summary of State

(continued...)

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Even where no contest in a state has occurred, the election results and returns from each state that

have reached the Congress, under the procedures of the Electoral Count Act, would have been

officially certified by state officers. The official “certificates of ascertainment” regarding the

election would have already been transmitted by the governor of each state to the National

Archives and Records Administration and to the Presiding Officer of the joint session.61 With

reference to contests relating to other federal elections ̶ federal congressional elections ̶ or in other

challenges to the credentials of Members-elect, the practice in Congress has been to place a clear

burden of proof upon the objecting party to overcome the presumption of validity of an election

that has already been officially certified by the proper state officials.62 Regarding their own

congressional elections, the House of Representatives and the Senate have adopted a “but for”

test, requiring the contestant to prove that “but for” the alleged fraud or irregularity the result of

the election would have been different.63 It is likely that a similar standard as that applied in

congressional precedents with respect to the burden of proof would at least influence Congress in

the case of challenges to the results of a state-certified election of presidential electors.64

Author Contact Information

(name redacted), Coordinator

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

Former CRS legislative attorney (name redacted) authored this report.

(...continued)

Procedures for Resolving Disputed Federal Elections, National Clearinghouse on Election Administration, Federal

Election Commission, 13 (1990).

3 U.S.C. §§ 6-14.

See generally George W. McCrary, A TREATISE ON THE AMERICAN LAW OF ELECTIONS, 237–39 (4th ed. 1897): The

certificate of election “constitutes prima facie evidence” of the regularity of the election proceedings and that the

individual presenting such certificate has been “duly elected.” In Senate, Floyd M. Riddick and Allan S. Frumin,

RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES, “Credentials and Oath of Office,” S.Doc. 101-28, at 704,

708-10; Senate Legal Counsel, Contested Election Cases, at 11 - 14 (October 2006); in House, see Gormley v. Goss,

H.Rept. 73-893 (1934).

House: 2 U.S.C. § 385, and Pierce v. Pursell, H.Rept. 95-245 (1977). Senate, see Senate Legal Counsel, Contested

Election Cases, supra at 22–3.

II HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, §1317 (1907); see William Holmes Brown, Charles W.

Johnson, and John V. Sullivan, HOUSE PRACTICE, Chapter 50, § 2, 112th Cong. 1st Sess. (2011): “On the theory that a

government of laws is preferable to a government of men, the House has repeatedly recognized the importance of

following its precedents and obeying its well-established procedural rules.”

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