As the Minnesota Senate recount drags into its sixth month and the March 31 New York special election looks likely to remain undecided for at least another week, now may be the time to ask: Why can’t voters pick a clear winner anymore?
At first glance, that might seem like an overstatement. After all, in 2008, Barack Obama won a convincing majority of the presidential vote and a preponderance of House and Senate elections were unambiguously decided.
Still, in a nation where the infamous Bush vs. Gore presidential stalemate of 2000 remains fresh in voters’ minds, recently there have been enough deadlocked contests in enough states to at least raise the question of whether federal elections are moving toward a frustrating new era of gridlock.
In 2008 alone, nine House and Senate races remained undecided after the polls closed on Election Day. There were 21 House races where the victor ultimately won with 51 percent of the vote or less, and three House races that finished with both candidates winning 50 percent.
In the presidential contest between Barack Obama and John McCain, three states — Indiana, Missouri and North Carolina — were decided by a margin of 1 percent or less. In Missouri, the outcome wasn’t known until two weeks after Obama was elected president. His winning margin? 0.1 percent.
In 2006, the story wasn’t all that different. If anything, there were even more House candidates who won their seats with 51 percent of the vote or less — 36 of them in all. Seven of those races finished with both the Democrat and the Republican winning exactly 50 percent each.
It’s hard to know whether what appears to be a surge in nail-biters is actually evidence of a new trend, since no one compiles statistics on the question or tracks races closely enough to say conclusively.
But election experts contacted by POLITICO attributed the spate of recent razor-close races to the increased sophistication of modern campaigns. They point to the pinpoint targeting and identification of potential voters, the increased use of absentee and provisional ballots and the growing use of litigation as a political strategy.
“Campaigns are contacting record numbers of individuals,” said University of Wisconsin political scientist Charles Franklin, who specializes in polling and elections. “Polling is certainly not a new thing, but the ability now to link the polling and use it for optimal effect in targeting and turning out voters is unprecedented.”
Just as campaign strategists have become better than ever at promoting their candidates and turning out voters, election lawyers have honed their legal tactics for keeping clients in the hunt long after the polls have closed.
Just last week, for instance, in anticipation of a close outcome in the New York special House election, lawyers representing Republican Jim Tedisco filed a motion contesting a win for Democrat Scott Murphy before the last vote was cast on Tuesday evening.
While the maneuver attracted widespread criticism on the left, the strategy of putting legal boots on the ground at an early stage is becoming a critical component in closely contested elections.
“Election law has become more of a political strategy,” said Rick Hasen, a professor at Loyola Law School in Los Angeles and the author of a popular and well-respected election law blog http://electionlawblog.org/ . “When these races are so close, almost anything can matter.”
At one time, there was a stigma attached to litigating election outcomes, largely because candidates feared getting labeled as sore losers — an important consideration since many candidates are officeholders or have plans to run again for office in the future. But after the 2000 Florida presidential recount, election lawyers say, fighting it out in court became an accepted part of the business.
“There was, prior to Bush vs. Gore, a kind of cultural reluctance to litigate too quickly. The sense was there was something inappropriate in jumping immediately to court,” said Ohio State University election law professor Edward Foley.
“It’s no longer inherently wrong to go to court the night of or the day after,” he added. “It’s part of the game now.”
Indeed, election litigation has exploded since 2000, growing from a yearly average of 94 cases per year prior to 2000 to an annual average of 237 cases in the years since, according to a study conducted by Hasen.
One reason appears to be a growing acknowledgment among political professionals that it’s better to lawyer-up than be sorry. In addition, there are new legal avenues for election lawyers to explore in the wake of the Supreme Court’s Bush v. Gore decision and new election laws that are an outgrowth of that race.
Since the 2000 election fight, a number of states have employed new voting methods and procedures that prompt new challenges to voting procedures.
And since a growing number of Americans are casting provisional or absentee ballots, that means more and more ballots go uncounted until after Election Day — delaying vote counts and the mounting legal challenges and ultimately extending the period in which races remain undecided.
“The growth of absentee and early voting and the growth of provisional ballots after 2000 means that in close elections, there is likely to be more litigations and contesting of those ballots,” Franklin said.
With all these factors at play, a candidate who is down, but maybe not out, has little motivation anymore to throw in the towel on Election Night.
“Running an election is difficult,” said Hasen. “Being able to count an election is almost mathematically impossible.”
Nowhere has that been more obvious than in Minnesota, where on the day after the election, Coleman’s website emphatically declared “VICTORY” and many of his Senate Republican colleagues issued statements congratulating the senator on his reelection.
Coleman, in fact, called on Franken to concede, saying, “the prospect of overturning 725 votes is extremely, extremely, extremely remote.”
As it turns out, the prospect wasn’t that remote at all. After initially calling the race for Coleman on Wednesday morning, The Associated Press quickly retracted its call. Six weeks later, the race was down to a two-vote margin, and by early January, Franken was declared the winner after the conclusion of a recount.
The Coleman camp already has signaled that it is likely to take its case, currently before a three-judge panel, to the state Supreme Court. Sen. John Cornyn (R-Texas), chairman of the National Republican Senatorial Committee, recently suggested that a federal court appeal is another option and suggested that it could take "years" to ultimately determine the outcome.
“The reality today is that most elections in most places are fought not only on Election Day but also before and after Election Day,” said Hasen. “[T]here is an expectation that you are going to fight to the bitter end.”