Election Nightmare Scenarios for 2004

by Joe Lenski, Edison Executive VP

Entering Election Night in 2000, the American voting public and the news media had grown accustomed to the typical election night ritual of quickly learning the results of the Presidential election. The 1976 election won by Jimmy Carter over Gerald Ford was the last time that the nation had to wait until after the polls on the West Coast had closed at 11PM ET in order to know who was the winner of the election. Ronald Reagan (twice – 1980 & 1984), George H.W. Bush (1988), and Bill Clinton (twice – 1992 & 1996) won elections by comfortable margins and were able to declare victory before most of the country went to bed that night.

Election Night 2000 was different. The television networks and their viewers endured a long Election Night, first believing at 2:15 AM that George W. Bush had won, and then soon realizing that the race in Florida was actually so close that the matter was not yet settled. It would be 37 days before a ruling from the U.S. Supreme Court would finally determine the outcome.

Of course, there is a small chance that this same nightmare scenario could repeat in 2004. In fact, the situations that could lead to a 2000-style electoral gridlock are numerous. This article describes in detail fourteen of these possibilities, any one of which may again leave the outcome of the election undetermined on Election Night.

Scenario #1 – Electoral Vote Tie

Situation: The final Electoral Vote tally is 269 for Bush and 269 for Kerry.

Likelihood: Mathematically the chances are about 1 in 80, but the possible combinations of states that would create a 269-269 Electoral Vote tie are numerous. Simply by flipping New Hampshire and West Virginia from Bush to Kerry and having Kerry carry all of the states that Gore carried in 2000 would create an Electoral Vote tie.

But that is just one possible way of getting to a 269-269 tie. I have examined all of the possible ways that 13 current toss-up states (Arizona, Florida, Iowa, Minnesota, Missouri, Nevada, New Hampshire, Ohio, Oregon, Pennsylvania, West Virginia and Wisconsin) could vote in a Bush-Kerry race, and have discovered 146 different plausible combinations that would lead to a 269-269 tie.

Outcome: According to the U.S. Constitution if the electoral vote for President ends up in a tie (or no candidate receives a majority of the electoral vote – 270 out of 538) the election is to be settled by the Congress on January 6, 2005. That’s right, it could take 65 days to determine the winner of a Presidential election that ends in an Electoral Vote tie. However, there are several steps that have to happen before the decision gets to the Congress.

First, the members of the Electoral College have to meet and physically cast their votes. The members of the Electoral College will meet in their respective state capitals on December 13, 2004 (the first Monday after the second Wednesday in December). That will give the two campaigns 41 days after Election Day on November 2nd to try to convince one of the 538 individuals who are electors to switch sides. Also it will give the campaigns 41 days to challenge the credentials of each elector – a little-known Constitutional provision states that no member of the Electoral College can be a member of Congress or an employee of the Federal Government. Any state party who forgets about this provision could see their elector disqualified and replaced.

There can also be some chicanery by the electors themselves to manipulate the subsequent voting by the House of Representatives for President. The Constitution states that if no person receives a majority, the House of Representatives can choose from among the top three candidates receiving electoral votes. For example a single Democratic elector could vote for a Republican other than George Bush (say John McCain for example) in hopes of splitting the Republican vote in the House. Or there could be a campaign to nominate a compromise candidate such as Colin Powell, and an elector or two could vote for Powell in order to give the House the option of selecting him as President in place of either Bush or Kerry.

Once the electors have cast their votes, they will be counted at a joint session of Congress on Thursday, January 6, 2005. The members of Congress have the opportunity to challenge the validity of any electoral votes. If at least one member of the House and at least one Senator object to an electoral vote, the two Houses shall then separately meet and decide about the objection. In 2001, members of the Congressional Black Caucus from the House tried to challenge the electoral votes from many of the states voting for George Bush especially those from Florida. However, they could not find a single Democratic Senator to join them. After the extreme partisanship of the last four years it would probably be a lot easier to find a Senator to join in objecting to any controversial electoral votes.

Once these challenges are dealt with and the votes have been counted, if no one receives a majority of the electoral votes the House will then begin voting for President and the Senate will begin voting for Vice President. Note that this vote will take place on January 6th three days after the new Congress has been sworn in on January 3rd.

The Senate vote is a straightforward vote – each Senator gets one vote and must choose between the top two finishers in the Electoral College. Whoever receives 51 votes would be elected Vice President. There is a question of what would happen if the Senate vote were a 50-50 tie. Normally the Vice President casts the deciding vote whenever there is a tie in the Senate. However, it would seem to be debatable whether Vice President Dick Cheney would be allowed to cast the deciding vote to make himself Vice President for another term. This outcome would probably end up being litigated in front of the U.S. Supreme Court.

Another note – John Edwards would not have a chance to vote for himself for Vice President since his Senate term ends on January 3rd. However, John Kerry would still be a Senator and he could cast the deciding vote to make Edwards Vice President. We could possibly see the paradoxical situation where John Kerry casts the deciding vote to make Edwards Vice President while the House votes to re-elect George Bush President resulting in the ultimate version of divided government.

The House vote for President is a lot more complicated. It is not a simple one-representative/one-vote situation. Instead, each state delegation receives one vote and the winner needs to receive the most votes from 26 state delegations. If a state delegation is tied that state casts no vote. The Republicans currently have a majority of the representatives in 30 states. However, a strategically placed switch of a handful of seats in November’s election could keep the Republicans from controlling the 26 states delegations necessary to re-elect George Bush in the event of an Electoral Vote tie. And if neither candidate can get 26 votes the House will keep voting and voting until someone does.

If the House cannot select someone by January 20th then the Vice President selected by the Senate will become acting President until the House can make a selection. Thus, if the Democrats in the Senate have succeeded in selecting John Edwards as Vice President it would be in their interest to continue a deadlock in the House for as long as possible so that Edwards could become acting President. Thus, we could possibly reach a situation where 79 days after Election Day we would still not have elected a President. Now that would keep the cable news networks busy.

A postscript since I originally wrote this article:

I had originally written that in the case of an Electoral Vote tie a single elector could determine the outcome by switching sides. Since then news reportes indicate that we may already have an elector who is considering doing just that. The Charleston Daily Mail reported on September 8th that one of the Republican electors in West Virginia – South Charleston Mayor Richie Robb – has announced that he may vote against George W. Bush even if the president carries West Virginia’s popular vote.

“It’s not likely that I would vote for Kerry,” Robb said. “But I’m looking at what my options are when it comes time to cast my vote.”

In the case of an Electoral Vote tie – or a 270-268 margin for Bush in the Electoral College – Richie Robb will have the most important single vote in the country.

Scenario #2 – The Proportional Electoral Vote Referendum in Colorado

Situation: Democrats have placed on the November 2nd ballot in Colorado a referendum that would change the method of allocating that state’s electoral votes. Currently like every other state, except Maine and Nebraska (which award electoral votes by Congressional District), Colorado awards all of its electors to the winner of the popular vote in the state. If this referendum passes, Colorado’s nine electoral votes would be awarded proportionally starting with the current election. If the electoral votes in Colorado had been awarded proportionally in 2000, Gore would have received three of Colorado’s eight electoral votes, and he would have won the electoral vote nationally 270 to 268. [Note that due to the new Census, Colorado has an additional electoral vote in 2004.]

Likelihood: First, the national electoral vote would need to be close enough for this procedure to make a difference. If there is a net swing of between 5 and 9 electoral votes from Bush to Kerry in the other 49 states then the outcome of the vote on this referendum would determine who is elected President.

Outcome: Actually there are all sorts of outcomes. For example, if the electoral vote in the other states gives Kerry a lead of 267 to 262 over Bush, but Bush is leading in Colorado, the outcome of the referendum would determine who wins the Presidency. If the referendum passes Bush would get 5 electoral votes from Colorado and Kerry would get the other 4 electoral votes putting him over the top 271 to 267. However, if the referendum were defeated Bush would get all of Colorado’s nine electoral votes and win nationally 271 to 267.

If the referendum passes and makes a difference nationally we can expect the legality of the referendum to be challenged by the loser.

But there is another complication. Say the result of the vote on the referendum is too close to call and heads to a recount. If these 4 electoral votes are critical we could expect another “Florida 2000” but this time the recount shenanigans would be over the vote in the referendum, not the vote for President. That’s right – a re-count in a state referendum in Colorado could determine the next President of the United States.

And if you really want a nightmare situation, you can imagine a situation where both the referendum and the presidential vote are too close to call and both results head for a recount. You could have a situation where each side may need to hire two sets of lawyers, one to argue each side of the referendum depending upon the outcome of the recount for President.

Take this possible situation. Bush leads in the electoral vote 265 to 264 and there are recounts in both the presidential and referendum votes in Colorado. There are four different possible outcomes:

It would be ironic for the Democrats if the referendum that they are promoting turns out to deny them the Presidency.

Scenario #3 – Louisiana Senate run-off Election determines control of the Senate

Situation: Louisiana has a non-partisan primary for Senate scheduled for November 2nd. If no candidate receives a majority of the vote the top two finishers will face-off on Saturday, December 4th.

Likelihood: The Louisiana Senate is almost definitely going to go to a run-off. There are seven candidates on the ballot – one Republican, four Democrats and two Independents – so it will be almost impossible for one candidate to receive over 50% of the vote. The odds that control of the Senate is dependent upon this race are small but real. Currently the Senate composition is 51 Republicans, 48 Democrats and 1 Independent who votes with the Democrats (Jim Jeffords of Vermont). A net swing of one or two seats to the Democrats nationally will mean that Louisiana’s seat could be the one determining party control of the Senate.

Outcome: A Louisiana Senate run-off would see a lot of attention if it would determine control of the Senate. It would get monumental attention if there were an electoral vote tie (see Scenario #1) and control of the Senate would determine the selection of the next Vice President. One can only imagine the amount of money that will be spent in Louisiana during the four weeks between November 2nd and December 4th if the outcome of this single race would determine both control of the U.S. Senate and who becomes Vice President.

Regardless of the outcome of the Louisiana Senate run-off, determining control of the Senate could be a tricky proposition. If Kerry wins the Presidency he will have to resign his Senate seat upon his inauguration on January 20th, 2005. In that case if there were 49 Democratic Senators before Kerry’s resignation plus Vermont Independent James Jeffords, the Democrats will not be able to control the Senate until Kerry is replaced in a special Senate election in Massachusetts. Under the likely case that a Democrat is elected to replace Kerry, the Democrats would then have 50 votes plus Vice President Edwards’ tie-breaking vote for control. Thus, we could see Kerry’s resignation from the Senate to become President give the Republicans temporary control of the Senate during Kerry’s first 100 days in office. Depending upon how contentious the results of the Presidential election, this is a recipe for even more gridlock in Washington, DC.

Scenario #4 – Louisiana House run-offs determine control of the House of Representatives

Situation: As with the Senate race, Congressional elections in Louisiana require that a winning candidate receive 50% of the vote in order to avoid a December 4th run-off election. At least two Congressional Districts – and as many as four – in Louisiana are likely to have run-off elections on December 4th. If both parties are short of the 218 house seats needed for control, the outcomes of these run-offs would determine control of the House.

Likelihood: The Republicans currently have a 227-205 edge in the House (with one Democratic-leaning Independent and two formerly held vacant seats). If the Democrats have a net gain of 8-11 seats in the other 49 states, the Louisiana U.S. House races could determine control of the House. As of now the Democrats are unlikely to gain that many seats but it is still a possibility.

Outcome: A lot of money will be spent advertising to the voters in these Louisiana Congressional Districts if control of the U.S. House is dependent upon the outcomes of these run-off elections. Also if the Electoral Vote for President is a tie and the Louisiana House run-offs will determine which party controls the Louisiana House delegation (and thus its vote for President in the House), you will see a monumental effort from both parties to win these House elections. Again the implications of an Electoral Vote tie could reverberate through the entire electoral process. The winner of the Presidential election could be determined by the outcome of a single House race down by the bayou.

If the race for House control is so close that a handful of seats will determine control of the House we are also likely to see a lot of effort spent lobbying potential party-switchers in the House. Louisiana Congressman Rodney Alexander just switched parties from Democratic to Republican in August. Conservative Democrats like Gene Taylor of Mississippi would come under a lot of pressure to switch to the Republicans, and Moderate Republicans like Chris Shays of Connecticut would receive similar attention (and offers) from the Democrats if by switching allegiances they could tip control of the House.

Scenario #5 – Recounts in Senate or House elections in order to determine party control

Situation: Close races in the Senate and/or the House go to recounts with the outcomes determining control of the Senate or House.

Likelihood: With the Senate currently 51-49 it is very possible that a single Senate seat could determine control. There is always a Senate race or two each cycle that ends up very close. In 2002 Tim Johnson of South Dakota won re-election by the grand total of 524 votes. In 1974 the vote count for New Hampshire Senate was so close (a difference of only two votes statewide) that no winner could be determined and the election was re-run several months later. A repeat of such a scenario would complicate a lot of things this year to say the least and potentially keep control of the Senate undetermined.

Similarly there are always a handful of close House races each election year. In 2002 The 7th CD in Colorado was determined by a scant 121 votes and the Louisiana 5th CD was determined by 976 votes in a December run-off. (Yes, it is possible that we could have a re-count in a run-off election.) In 2000 the Michigan 8th CD was determined by a margin of 111 votes. And there may be something in the water this year – there have already been three House primaries this year – one each in New Jersey, North Carolina and Colorado – that have been close enough for the consideration of a re-count.

The most famous recount in the recent history of the House is the re-election of Democrat Frank McCloskey in Indiana’s 8th CD in 1984. Indiana election officials conducted two vote counts; the first showed the Democrat McCloskey ahead by 72 votes; the second showed his Republican challenger Richard McIntyre ahead by 34 votes. The U.S. House appointed a task force which concluded that McCloskey had won by 4 votes. After much rancor the Democratic-controlled House voted on May 1st, 1985 (six months after the election) that the Democrat McCloskey was the winner. The Republican elephants in the House have long memories and you can be sure that they would enjoy payback if a similar situation arose twenty years later.

Scenario #6 – Terrorist attack or other calamity causes a postponement of the election in at least one state

Situation: A terrorist attack or other calamity is severe enough that election officials postpone the election in at least one state (or part of one state).

Likelihood: With all that occurred that day, few remember that September 11th, 2001was an Election Day in New York City. Within an hour or so of the attack the State of New York postponed the Primary and re-scheduled it for two weeks later. If there is an attack of a similar magnitude it is very likely that the election would take a back seat to dealing with the aftermath of an attack.

Outcome: This is completely uncharted legal territory.

Per a Federal law of 1848, this year presidential electors must be selected on November 2nd (Tuesday after the First Monday in November) and the electors must cast their votes on December 13th (Monday after the Second Wednesday in December). If the presidential election is close enough that any states whose elections are postponed would determine the outcome we will see a lot of legal activity from both sides.

There are many legal questions that would have to be answered most likely by the United States Supreme Court.

The first question would be whether electors who are not selected until a rescheduled election of the postponed November 2nd election would be legally qualified to vote for President.

The second question would be whether there could be an election held in time to have electors ready to vote by December 13th. In its ruling in Bush v. Gore, the U.S. Supreme Court placed a lot of importance on this date as a strict deadline for casting electoral votes.

The third question would be if a state were not able to select electors in time would the winner need a majority of all eligible electors or just a majority of the electors who were able to cast a vote.

Here is an example of how such a situation could occur: New York is unable to conduct an election on November 2nd because of a terrorist attack (or a black-out or a massive hurricane – pick your poison). The other 49 states and the District of Columbia continue with their elections and the result is Bush 258 electoral votes (he wins every state he won in 2000 except Ohio) and Kerry has 249 electoral votes with the 31 electoral votes from New York undetermined. Now everyone knows that if there were an election, New York would vote for Kerry and those 31 electoral votes would give Kerry the Presidency. However, if it is ruled that New York is ineligible to vote because its electors were not selected on November 2nd who is then the winner? Is Bush the winner because he has more electoral votes than Kerry? (Remember that there were Democrats who were making the argument in 2000 that if the Florida electors were thrown out Gore should be the winner because he would have then had a 267-246 lead in the Electoral College without the Florida electors.) Or would the presidential election go to the House because neither candidate has the necessary majority of 270 electoral votes out of the possible total of 538?

The fourth question is what would happen to the absentee and early votes cast in a state whose presidential election is postponed. Would those votes still be counted or would these voters need to cast their votes again? The ruling on this would probably vary from state to state but in New York in 2001 all of the absentee votes cast before September 11th were discarded and all of the absentee voters were forced to re-cast their votes for the September 25th re-scheduled election.

The fifth question is if a state postpones its election and reschedules it for later in November who is going to police the election so that people who have already voted in other states do not “temporarily” move to that state to vote in the postponed election. This is even more of a potential problem in the seven states that allow Election Day registration (Idaho, Maine, Minnesota, New Hampshire, North Dakota, Wisconsin and Wyoming). The original election law of 1848 setting a single presidential election day was enacted just to avoid such issues.

The final question is whether under such a contingency the state legislature just might take it upon itself to select its presidential electors without a popular election. The Florida State Legislature was preparing for this possibility in 2000 if the courts had thrown out the certification of the Florida electors. There is nothing Constitutionally or legally that can stop a state legislature from meeting on November 2nd and changing the law so that they select the electors and the popular vote in that state would then be moot.

Scenario #7 – The death (or disability) of a presidential or vice presidential candidate before November 2nd

Situation: Through assassination or natural causes George Bush, Dick Cheney, John Kerry or John Edwards dies before November 2nd.

Likelihood: After several heart attacks, the health of Dick Cheney is always a subject of speculation. And four presidents out of 42 have been assassinated with attempts being made on the lives of three Presidents (Truman, Ford and Reagan), one President-elect (FDR), and at least three other presidential candidates (Teddy Roosevelt, RFK and George Wallace) in the last 90 years.

Outcome: Things get very tricky here. After the first week in September it becomes very difficult in many states to replace a candidate on the ballot. Thus, it is likely that the deceased candidate would remain on the ballot with the National Committee of the Party meeting to select a replacement candidate who would receive the electoral votes in case that candidate wins. The only precedent here is the death of Vice President James Sherman on October 30th, 1912 a few days before the Presidential election. The Republican Party selected Nicholas Butler as his replacement. Since President Taft and his new running-mate Butler only received eight electoral votes this did not make much of a difference.

How would each Party respond? If Bush died and Cheney automatically became President would he also be elevated to be the Presidential nominee by the Republican Party? That is not necessarily a sure thing. Cheney is on record as saying that he is not interested in running for President and with his heart condition and probably more importantly his low favorability ratings the Republican Party might choose someone else although the choices aren’t obvious (Powell, McCain, Giuliani, Frist ???). There would be some frantic few days of behind-the-scenes negotiating in order to build a consensus before the Republican National Committee meets to select a nominee.

The situation for the Democratic Party might be even more interesting if Kerry were to die or be disabled before Election Day. The Democratic National Committee would meet to decide on a replacement. The choice of Edwards as the replacement would seem logical but would the Clinton-backers seize their chance to put Hillary at the top of the ticket? Or would they force a deal on Edwards to accept Hillary as his running-mate so as not to face a challenge for the Presidential nomination?

All of this drama could possibly have to work itself out under the cloud of an assassination and perhaps U.S. retaliation depending upon who is determined to be behind the assassination. Also the time frame would be very short with the election only weeks or even days away.

Scenario #8 – The death of a winning presidential or vice presidential candidate between November 2nd and December 13th

Situation: The winning presidential or vice-presidential candidate dies after the election on November 2nd but before the Electoral College actually meets to cast its votes on December 13th.

Likelihood: See situation above.

Outcome: The situation here becomes even more convoluted.

There is only one precedent for this situation. In 1872, losing presidential candidate Horace Greeley died on November 29th – after the election but before the electors voted. The electors were on their own in that case. Most electors (42) voted for Senator Thomas Hendricks of Indiana while 18 other voted for the Vice Presidential nominee B. Gratz Brown. Two other candidates (Charles Jenkins and David Davis) also received some electoral votes for President. Three electors insisted on voting for the deceased candidate, Horace Greeley. When counting the votes Congress ruled that electoral votes for a dead person should not be allowed. It is assumed that this precedent would still hold in any subsequent election.

But that was for a losing candidate where the actual electoral votes did not make any difference in the selection of a President. How would a Party handle the situation if a winning candidate dies?

The Party National Committee could meet to select a replacement. But whomever they select would still have to be validated by a vote of the Electoral College.

Let’s examine what might happen with, say, the death of winning candidate John Kerry occurring some time between November 2nd and December 13th. The Democratic National Committee could meet and select a replacement – likely either John Edwards or Hillary Clinton – but 270 electoral votes would still be needed for this candidate to be elected. In a close election, a small number of Democratic electors could block this choice. Has anyone checked how many of the potential Democratic electors are friends of Bill and Hillary?

Scenario #9 – The death of a winning presidential or vice presidential candidate between December 13th and January 20th

Situation: The winning presidential or vice-presidential candidate dies after the Electoral College actually casts its votes on December 13th and inauguration day on January 20th, 2005.

Likelihood: See situation above.

Outcome: The situation here is a little more settled because the Electoral College would have already voted. The official Presidential Line of Succession would automatically come into play here. If a re-elected George W. Bush dies, Vice President Cheney becomes President. If an elected John Kerry dies, Vice President-elect Edwards would become President on January 20th.

In the case of the death either of the President-elect or the Vice President-elect, the next step would be the selection of a new Vice President. According to Amendment 25, the President would select a replacement and the House and the Senate would confirm this choice. With the possibility of at least one House of Congress being controlled by the opposition party, this selection could become very politically charged especially if the country has just gone through another highly litigated presidential election. The opposition party could hold up the confirmation of a vice presidential selection in exchange for other considerations. In this case the Speaker of the House would be next in line to the Presidency until a Vice President is confirmed.

Scenario #10 – The death of a presidential or vice presidential candidate in the event of a tie electoral vote

Situation: The electoral vote is a tie and one of the nominees dies after the election.

Likelihood: Infinitesimally small, but it is a combination of possible events that would need to be dealt with.

Outcome: Again this would be completely uncharted water. But the United States Constitution does address this potential situation in Amendment 20 paragraph 4. “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representative may choose a President whenever the right of choice shall have devolved upon them and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.”

In other words if no candidate gets a majority of the electoral votes and one of the top three candidates for President dies after the Electoral College has voted but before the House has selected the President, the Congress can decide what to do. Now what the Congress would decide to do in such a circumstance is just a matter of speculation.

Scenario #11 – Absentee voting

Situation: One candidate leads in the Election Day voting but the other candidate makes up the difference in absentee votes.

Likelihood: Probable. It happened in at least two states in 2000.

As part of the recount process in Florida in 2000, it became clear that Al Gore had won the Election Day vote, but George W. Bush had a slightly bigger margin among those who had cast absentee votes. In fact, Gore won the Election Day vote in Florida by more than 2 points (a margin of 131,373 votes) but Bush won the vote among the 12% who cast their vote in Florida by absentee by 20 points (a margin of 131,910 votes).

The situation was exactly the reverse in Iowa. George W. Bush actually won the Election Day vote in Iowa by just under 1 point (a margin of 7,253 votes), but Al Gore won the Absentee voters by 4 points (a margin of 11,397) which allowed him to win Iowa’s electoral votes by a total margin of just over 4,000 votes.

Outcome: The two parties know these facts and have learned a lot of lessons from the 2000 Election about the value of absentee voting. Each Party and their unofficially affiliated 527s are spending considerable time and money to increase the number of their partisans who are casting absentee votes. Approximately 16% of all voters in 2000 cast a ballot by-mail or in-person before Election Day. In 2004 this percentage is likely to grow to more than 20% of the total vote. All voting in Oregon is now done by mail. In the state of Washington more than two-thirds of the vote will be cast by mail. There are another six states (Arizona, Colorado, Nevada, New Mexico, Tennessee and Texas) where at least 40% of the vote will be cast before Election Day.

So why is this a problem when it comes to learning the winner of the election on Election Day?

The biggest problem is that some states do not count many of the absentee votes on Election Day. In addition some states only dictate that an absentee ballot be postmarked by Election Day and does not have to be received by election officials until later. Thus, the votes are unable to be counted because they are literally still in the mail.

There are several states in which uncounted absentee votes could delay knowing the winner of the election.

In Oregon only 73% of the mail-in votes were counted on Election Night in 2000. At 6AM the next morning George W. Bush led the vote count by over 31,000. Days later Gore pulled ahead and won the state by just under 7,000 votes.

In Washington more than half of the absentee votes were not counted on Election Night in 2000. This did not affect the presidential race but it did keep the winner of the Senate race from being determined for more than three weeks.

There are seven states with critical presidential or senate contests that do not count a significant portion of their votes on Election Night. In 2000, Alaska (13% of the total vote uncounted), Arizona (14%), California (16%), Maine (13%), Michigan (8%), New Mexico (13%) and North Carolina (7%) had a considerable number of votes left uncounted on Election Night.

The other problem with Absentee voting is the potential for voting fraud. There are already news stories about potentially fraudulent voter registrations in states like Nevada and Ohio. In an election where the stakes are so high and the election is so close it is not inconceivable that someone could organize some hanky-panky to increase the number of absentee votes via fraud.

There is a history of this in several locales. The results of the 1997 election for mayor in Miami, Florida were thrown out after evidence of 5,000 fraudulent absentee ballots was discovered. In 1993 the results of a Pennsylvania State Senate election in Philadelphia were thrown out and campaign officials thrown in jail after evidence of absentee fraud was found in that race. It is not out of the realm of possibility that someone might try to do this, and also not out of the realm of possibility that they will eventually be caught which might cause the election to be thrown out. [See all the complications that would cause under Scenario #6.]

Scenario #12 – Provisional Voting

Situation: Under provisions of the Help America Vote Act (HAVA), voters who show up at the polling place and find that they are not on the voter registration list are given the opportunity to cast a “provisional” ballot which is not counted on Election Night but is counted later if the election officials can validate that the voter is indeed registered to vote. These uncounted provisional ballots could provide the margin of victory in a closely contested race

Likelihood: Probably pretty likely. Remember that Bush officially won Florida by 537 votes, and Gore won New Mexico officially by 365 votes. Three other states (Iowa, Oregon and Wisconsin) were also decided by less than half of one percent of the vote. It is not unlikely that the number of uncounted provisional ballots will exceed the unofficial vote margin on Election Night in several states.

The 2000 election was abnormally close on many levels but it was not that out of line with the number of close states in a typical presidential election. In 1992 and 1996, two states in each election were decided by 1% or less; in 1980 three states were decided by 1% or less; in 1976 there were four states; and in 1960 six states were decided by 1% of the vote or less. Thus, past history suggests that if the race is close nationally, there will be at least several individual states close enough for provisional ballots to make the difference.

Outcome: So how are these provisional ballots validated? Well, that varies from state to state. In 26 states and the District of Columbia election officials have ruled that a provisional ballot must be cast in the correct precinct or it will not be counted. Other states have ruled that as long as the voter is indeed registered to vote the provisional ballot will be counted even if that voter went to the wrong polling place to cast the ballot.

Different Standards? That sounds familiar courtesy of the Supreme Court’s ruling in Bush v. Gore. You can bet that if provisional ballots could indeed make the difference in an election the lawyers will be arguing over which ballots should be counted and which ones should not.

How long could such a legal process take? The process of validating a provisional ballot usually takes seven to ten days. The legal challenges could take a lot longer.

We can look at the 2002 House Election in Colorado’s 7th Congressional District as an example of how this would play out in a close election. After the election on November 5, 2002 Republican Bob Beauprez led his opponent Democrat Mike Feeley by 386 out of more than 160,000 votes counted. However, there were 6,200 provisional ballots cast that were not yet counted. After about one week of arguing, election officials in the three counties that make up the CD decided that about 2,000 of the ballots were valid and should be counted. Once they were counted Beauprez’s margin dropped to 122 votes. On November 21st, Feeley demanded a recount which was not completed until December 10th – 35 days after the election. The result: Beauprez won by 121 votes. The arguments over which provisional ballots should be counted in a close race for president could last for weeks if not months.

Scenario #13 – Late arriving military and oversees ballots

Situation: Late arriving military and overseas ballots determine the outcome of an election.

Likelihood: Well, it happened in Florida in 2000. Florida counts overseas and military ballots that arrive within 10 days of Election Day. In 2000 Florida counted 2,490 overseas and military ballots. They provided George W. Bush with a margin of 739 votes which was more than the 537 votes by which he officially won the state.

Outcome: Believe it or not, another key state in this year’s election has a similar provision. Ohio will count overseas and military ballots which arrive as late as November 12th this year as long as the ballot has a November 2nd postmark. There are 10 other states that have similar post-Election Day deadlines for overseas and military ballots including the battleground states of Arkansas, Iowa, Washington and West Virginia.

Scenario #14 – Miscounting of Votes

Situation: Through human or mechanical error, votes are miscounted on Election Night leading to the reporting of the wrong winner of a race.

Likelihood: Again this was part of the confusion in Florida in 2000. Significant miscounts of the vote during Election Night took place in Brevard, Duval and most significantly Volusia Counties.

Outcome: After all that happened in 2000, one would think that vote miscounts would be less likely to happen subsequently. However in the Election of 2002 there were still miscounts of the votes.

The most critical miscount occurred in Baldwin County, Alabama for the Governor’s Election. Baldwin County initially reported 7,000 extra votes for incumbent Governor Don Siegelman. This temporarily put Siegelman ahead statewide by about 4,000 votes late in the evening and led the Associate Press to momentarily declare him the winner. Baldwin County corrected its tally later in the evening and Bob Riley ended up being the victor by 3,120 votes. This miscount led to several weeks of confusion until Siegelman finally conceded 13 days after the election.

The mistake in Alabama was quickly corrected. However, there are plenty of vote count mistakes that are never caught.

In researching the 2002 vote returns for Arkansas we discovered a similar mistake that has been “officially certified” by the State of Arkansas. Precinct 4D in Garland County reported that 951 votes had been cast for Senate but in the same precinct 5,142 votes had been cast for Governor. Reviewing the candidate returns for each race it becomes clear what happened.

Obviously there was a typo when the results were recorded for Governor Huckabee – an extra “3” was tacked on to Huckabee’s vote. Awarding Huckabee 465 votes in this precinct as opposed to 4,653 means that 954 votes would have actually been cast in this precinct for Governor, almost exactly the same number as the votes cast in this precinct for Senate.

This means that because of a simple typo Governor Huckabee received 4,188 extra votes in the “official certified” results. Huckabee’s margin of victory statewide was 48,843 votes so these 4,188 extra votes did not change the winner. However, if typographical errors this large can occur in a single precinct, it means that any race with a small margin of victory could be change by a simple mistake in recording the votes in a single precinct.


This article examined 14 possible “nightmare” election scenarios that could keep us guessing about who has won this year’s election until days or weeks after the final ballots have been cast. These possibilities also demonstrate how legal challenges in the courts may influence the final outcome of the election.

I welcome your comments about these scenarios or about other possibilities that I have overlooked. You can contact me at jlenski@edisonresearch.com.

2 replies
  1. Anonymous
    Anonymous says:

    Actually, in scenario 9, things aren’t that clear-cut.
    There is no specification in the Constitution as to when a candidate becomes President-Elect. Between the casting of the electoral votes on December 13 and the actual counting on January 6, there is, arguably, no President-Elect, since the results haven’t been certified by Congress. One can then argue that the votes for the dead candidate should not be counted on January 6 under the not-quite-on-point Greeley precedent. This creates a multiple number of outcomes that would almost certainly be litigated heavily.
    The first outcome is that the dead winning candidate is ruled to have been the President-Elect as of December 13, when the votes were cast, in which case there’s normal succession as describe in scenarion 9.
    The second outcome is that the dead winning candidate is ruled to have not been President-Elect as of December 13, since the votes were not counted and certified, but on January 6th his Electoral votes are counted for him, since he was alive at the time they were cast (unlike the Horace Greeley votes). As he is now President-Elect but ineligible due to being dead, normal succession follows as per scenario 9.
    The third is that the dead winning candidate is ruled to have not been President-Elect as of December 13, and on January 6th his Electoral votes are thrown out as invalid, since he’s dead at the time they’re being counted (like Horace Greeley’s votes). In this case, there’s further debate. Under one case, the second-place candidate wins, since he won a majority of all valid votes. On the other, since nobody won a majority of all the electors, the election goes to the appropriate house of Congress (effectively scenario #10).

  2. adam
    adam says:

    The sad thing about the upcoming Presidential election is this: regardless of who wins, whether its President Bush or Senator Kerry, about half of the nation is going to be pretty upset..and roughly one fourth of that half is going to be INFURIATED. Both Bush and Kerry are polarizing individuals..you either love them or you hate them-there’s really no in between with these two. And truthfully, neither candidate would be able to mend our broken and divided nation once they took office.

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